For months now, Amy Breihan and other civil-rights advocates like her have been urging Gov. Mike Parson and the Missouri Department of Corrections to take steps to reduce the COVID-19 risk in state prisons.
The requests have fallen on deaf ears. Missouri is one of the few states in the nation that has not attempted to reduce its prison population to slow the spread of COVID-19.
Breihan is the co-director of the Roderick & Solange MacArthur Justice Center, a nonprofit law firm that advocates for the rights of people too often trampled upon by the criminal justice system. Last week, she won a landmark victory when U.S. District Judge Stephen R. Bough ordered a revamp of the state’s parole system so that Missouri would stop sending people back to prison on alleged parole violations without first giving them due process, including access to an attorney, as required by law.
For years now, Missouri has had the second-highest rate in the nation — more than 50% of its prison population — of people behind bars on parole or probation violations, many of them technical in nature. One of the reasons is because the state cuts corners on putting people back in prison.
“The Court finds troubling the pressure placed on parolees to waive preliminary and revocation hearings, sometimes based on false and misleading information,” Bough wrote in his order, which now requires that parolees be given proper access to an attorney before such rights are waived. “The issue is exacerbated by evidence that some parolees waive their right to hearings before receiving their violation reports and without an adequate explanation of their rights in the process.”
Bough’s ruling should, over time, reduce Missouri’s prison population, especially its population of people sent there for parole violations. But it does not require any action for those folks already behind bars whose rights might have been violated.
And that’s what makes Breihan’s advocacy for compassionate release and other measures to reduce the spread of COVID-19 in the state’s prisons so important. As of the date of Bough’s ruling, there were more than 1,500 detainees in Missouri’s prisons who were positive for coronavirus, and an additional 500 or so corrections employees. More than 22 detainees have died from COVID-19, averaging about one a day in the month of November. Corrections officers are dying, too.
These are people in the state’s care — or on its payroll — who were not in prison on a death sentence, but received one anyway, courtesy of Parson’s failure to lead during the pandemic.
That’s also the point U.S. Supreme Court Justice Sonia Sotomayor drove home in a searing dissent this week in a case involving Texas detainees, who like those in Missouri, are dying because of COVID-19 and that state’s failure to require mask wearing and social distancing, or to provide other relief. A federal judge in Texas had ruled in July that corrections officials there had to start following health procedures to protect inmates during the coronavirus pandemic. But the state appealed the ruling and so the order was put on hold.
This week’s ruling from the nation’s high court rejected an attempt by two elderly inmates to lift that hold, so the order could be enforced. Sotomayor, joined by Justice Elena Kagan, dissented, saying it was a matter of life and death that the order be enforced.
“The people incarcerated in the Pack Unit are some of our most vulnerable citizens,” Sotomayor wrote. “They face severe risks of serious illness and death from COVID–19, but are unable to take even the most basic precautions against the virus on their own. If the prison fails to enforce social distancing and mask wearing, perform regular testing, and take other essential steps, the inmates can do nothing but wait for the virus to take its toll. Twenty lives have been lost already. I fear the stay will lead to further, needless suffering.”
So it often is in the criminal justice system. Whether it’s somebody being held before trial on high bail, or a parolee facing a long jail wait for a hearing, people behind bars, particularly those who are poor, often have their rights trampled, the same rights so many of the rest of us take for granted.
“It’s a lot quicker to just throw someone back in prison and not worry about jumping through the hoops,” Breihan says.
Bough’s order will upend the rush to fill Missouri’s prisons with parolees. But it won’t do anything about those whose rights were already violated. They are stuck behind bars as cases of COVID-19 rise exponentially, hoping to avoid the death sentence that lurks around the corner.