'Justice Should Be Blind': An Ethicist's Case for Decarceration

As COVID-19 cases continue to rise inside state and federal prisons across the United States, increasing attention is being drawn to the conditions inside those facilities.

Nationwide, there have been at least 765 deaths from coronavirus-related causes, while the rate of COVID-19 infections is five times higher inside lockups compared to the general population, according to research by Johns Hopkins University and the UCLA Law COVID-19 Behind Bars Data Project published in the Journal of American Medical Association.

Several lawsuits are alleging delayed and inadequate health care and are seeking to hold both state and federal prison systems accountable around the country, including lawsuits in Connecticut, Louisiana and here in the Bay Area.

The pandemic is also raising broader questions surrounding medical ethics, such as what happens when ventilators run out and is it ethical to keep incarcerated people confined in conditions known to increase the spread of the virus?

In California state prisons, where at least 8,600 prisoners have been infected and at least 52 have died, lawmakers and advocates have been calling for the release of more prisoners to help draw down the population inside and reduce the risk of spreading COVID-19.

KQED’s Brian Watt spoke with Dr. Charles Binkley, the director of bioethics at the Markkula Center for Applied Ethics at Santa Clara University to dig into solutions to the pandemic inside prisons.

This interview has been edited for clarity and brevity.

Brian Watt: As a bioethicist, what does California's handling of the crisis in the prisons tell you?

Dr. Charles Binkley: The jury is a little bit out on that, and I think that it is going to be a critical and crucial issue that Californians are going to face. But we have to find longer-term solutions around criminal justice reform, and that has to take into account emerging communicable diseases and our ability to control them.

In bioethics, we think about the one standard of care for all, regardless of who comes in or what they've done.

We treat everybody the same and we're really blind, just like justice should be blind. We as providers are blind so we treat everyone with the same high quality standard of care. And that's just not happening. And this is unmasking that.

Morally and ethically, what responsibilities does the government have in caring for incarcerated people?

I think that they have the same responsibility that we all do.

We know that prisons are already overcrowded. We know that it's an older, sicker population and we know there's less access to high-quality care. And so I think what has to happen, first of all, is you have to be able to translate those basic public health priorities.

I think you start by decarcerating. You look at who are the people that can be released early and focus on vulnerable populations within that group — so that you reduce prison crowding.

How do you also think about the ethics of releasing inmates and whether that is really going to make formerly incarcerated people safer when they go out into the world?

I think about it just purely from a public health perspective, so we know that the boundaries between the prison and the surrounding communities is porous to begin with. And so you really need to make sure that there's been proper testing and isolation of incarcerated people before you release them out into society or out into the community. The same thing is true with staff of the prison. The community is itself at risk — if there's an uncontrolled infection within the prison itself.

Does the fact that our prisons are overcrowded and that health care standards inside prisons are different from the outside say something about our society?

Absolutely, I think that it says something very important. It says that we've neglected this idea of justice — we've neglected the idea that everyone should have equal access to the highest possible quality of medical care. It's particularly problematic when you think about our status as a nation and our relative wealth as a nation.

What is the federal government doing during this moment, and what is it saying to you as a bioethicist?

It does seem a bit perverse for the federal government to resume executions in the middle of a pandemic while other systems throughout the world are looking at decarcerating inmates, looking at reexamination of some of their criminal justice structures in the middle of the pandemic. Our federal government is executing people and making its citizens witness to those executions while there's so many of us that are fearful of the virus. And also so many people who are out of work. So many people who are suffering otherwise and dying unnecessarily in the midst of the pandemic.