COVID in custody: Prison concerns reflect pandemic's changing impact

When COVID-19 struck New Jersey two years ago, the pandemic spread on waves of fear and confusion, particularly in jails and prisons across the state.

But just as the coronavirus has mutated, its effect on society also changed — giving way to dissent and division. 

That evolution shows clearly in two court fights over people in prison that essentially bookend the COVID era’s current span here.

A lawsuit filed shortly after the pandemic’s onset sought early release for vulnerable inmates at a South Jersey prison.

The May 2020 suit asserted “many” men held at FCI Fort Dix in Burlington County “spend their days under their covers, quite literally hiding from the virus.”

But this year, two police unions offered a more resigned view toward COVID-19 as they argued against a vaccine mandate for corrections officers.

"It has been nearly two years since (Gov. Phil Murphy) declared a state of emergency … and we remain in the midst of a global pandemic," one of their lawsuits said.

"It is clear that COVID-19 is here to stay," that suit argued.

Indeed, a ruling in the officers' case earlier this year noted COVID-19 had spread to infect 54 percent of people in custody in New Jersey.

"The virus has had a devastating and drastic impact on our economy and our way of life," said the ruling. Almost 20 percent of the state's residents had contracted COVID-19, and 31,000 had died, it added.

The impact of COVID-19 in prisons

One constant throughout the pandemic has been a high risk for people living in custody, says the COVID Prison Project, a group of public health scientists that tracks the virus’ impact on federal and state lock-ups.

“In fact, a majority of the largest, single-site outbreaks since the beginning of the pandemic have been in jails and prisons,” it notes.

Its nationwide count shows more than 2,800 inmates and 274 prison staffers have died from COVID-19, with positive cases for more than 575,000 inmates and 192,000 staffers.

In South Jersey, the Federal Bureau of Prison reports two inmate deaths at FCI Fort Dix and one at FCI Fairton in Cumberland County. No staff deaths are reported at either facility.

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And New Jersey’s Department of Corrections reports 59 inmates died after testing positive for COVID-19 through May 26, 2021.

But those grim numbers don't add up to agreement on how to cope with COVID-19 in a country where 2.3 million people live in custody. 

New Jersey's early release program criticized 

In recent weeks, Republican legislators have assailed two key tactics used by the Murphy Administration to curb the spread of COVID-19 behind bars.

U.S. Rep. Jeff Van Drew on Wednesday linked those measures — an inmate-release program and a vaccine mandate for corrections officers — in a statement that accused Murphy and New Jersey Democrats of pursuing a “leftist agenda.”

“If Gov. Murphy is truly concerned about the public safety of New Jerseyans in issuing these vaccine mandates, then he would not be allowing violent criminals to be released from prison ahead of their sentence,”  claimed the 2nd District congressman.

Republican critics  have noted two of the 5,400 inmates freed by the DOC in 2020 and 2021 were charged with homicides after their release. One of those men, Ronnie Paden, 28, of Delran, is accused of killing two people at a birthday party in Edgewater Park in January 2021.

Those homicides show "people are dead who would be alive today if not for Gov. Murphy’s misguided early release program,” state Senator Anthony Bucco, R-Morris, asserted in a Feb. 10 statement.

Risk of COVID spreading among prisoners

Public health researchers disagree, saying the greatest threat is to the lives of inmates in high-risk prison settings.

Inmate-release programs lead a list of "pressing public health priorities for responding to COVID-19 in prisons," according to a scholarly essay in the American Journal of Public Health, a peer-reviewed publication of the American Public Health Associaton,

Many incarcerated individuals have considerable health morbidity, and a significant proportion are older than 60 years, known predictors of COVID-19 severity and fatality," said the May 2021 report.

Involuntary confinement can also weaken the immune system, in part by causing stress and poor sleep, it continued.

Similarly, a study from the National Academy of Sciences has noted conditions at correctional facilities — often, overcrowded and poorly ventilated buildings with a rapid turnover of inmates from low-income communities of color — "increase the risk of coming into contact with the virus for incarcerated people, correctional staff, and their families and communities."

By reducing a prison's population, the October 2020 study found, "other mitigation strategies are easier to implement."

Both studies emphasized the need to provide services for freed inmates, including educating them about COVID-19, helping to address their health care needs, and prioritizing.

New Jersey's Department of Corrections has provided those services under its early-release program, according to agency spokeswoman Liz Velez.

She noted the DOC allowed early exits for inmates within 365 days of their release date, but excluded prisoners convicted of murder, aggravated sexual assault and sex crimes considered “repetitive and compulsive."

The agency's "virus mitigation strategy … includes masking, enhanced sanitization, social distancing, weekly testing and vaccines, including (the) vaccine mandate,:" Velez added.

COVID vaccine mandates for prison residents and staff 

More than 62 percent of the DOC's inmates are fully vaccinated, she noted.

But some Republican legislators have questioned the need for vaccine mandates for corrections officers and other front-line workers.

State Sen. Ed Durr of Logan has asserted "the rapidly declining threat of COVID” is a reason for Murphy to “just drop the vaccine mandates entirely.”

In a March 3 statement, he also claimed “health experts have repeatedly warned us about the perils of COVID-19 vaccine mandates, which are discriminatory and not based in science."

That referred to opposition to vaccine mandates from the state's largest nursing union, HPAE, said Jonathan Azzara, a spokesman for Senate Republicans.

"They have members with concerns about the vaccine, and they warned that enforcement of the governor’s mandate will lead to nurses being fired and a shortage of skilled caregivers in hospitals, nursing homes, and other settings," Azzara said.

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Durr and state Senator Michael Testa, a Vineland Republican, have proposed a bill that would prohibit vaccine mandates for corrections officers, contending the requirement would be "discrimination."

Taking a different view, a CDC report in August 2021 found "high COVID-19 vaccination coverage is critical for (the BOP to protect staff and incarcerated people during the COVID-19 pandemic and to return to pre-pandemic operations."

"Prison residents and staff must be prioritized for vaccination," said the AJPH essay, whose lead writer was Dr. Elizabeth Barnert, an associate professor of pediatrics at David Geffen School of Medicine at UCLA.

And Katherine Nowotny, a co-founder of the COVID Prison Project and an associate professor of medical sociology at the University of Miami, described reductions of prison populations and vaccines as "two of the most effective COVID-19 prevention strategies."

'Fort Dix is speeding towards a catastrophe'

The dread that filled the pandemic’s early days is clear in the May 4, 2020, class action suit on behalf of FCI Fort Dix inmates. It was filed just weeks after the prison’s first COVID-19 diagnosis on April 3, 2020.

“Without significant changes, Fort Dix is speeding towards a catastrophe,” declared the lawsuit, which was brought by the American Civil Liberties Union of New Jersey Foundation. 

“For the 3,000 prisoners at Fort Dix, and especially for those who are medically vulnerable, every day brings increasing panic and increasing risk of serious illness or death,” it asserted.  

Without a significant reduction in the prison's population and increased measures to curb the virus, the lawsuit argued, conditions at FCI Fort Dix would violate inmates' constitutional protection against cruel and unusual punishment.

The suit, brought in the names of four FCI Fort Dix inmates, sought to represent all current and future inmates "over the age of 50 or who experience medical conditions that make them vulnerable to COVID-19."

One of four plaintiffs named in the suit, Michael Scronic, gave a statement describing an inmate's collapse as a nurse and a senior staff member conducted temperature checks.

"People screamed for help, and I went over and witnessed the following: The senior staff member sprayed the fallen inmate with disinfectant, his whole body and then his head."

"Eventually, I yelled, 'Get him out of here. He needs help now!'" recounted Scronic, who said the inmate was taken to a medical unit in a wheelchair.

Scronic and the other named plaintiffs remain in custody at this time, according to the BOP.

The BOP, in turn, argued it had made "extraordinary efforts" to safeguard inmates living in converted military dormitories at the low-security prison and an adjacent minimum-security camp.

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U.S. District Court Judge Renee Marie Bumb rejected the inmates’ request for lack of jurisdiction.

"To be fair, (the inmates') fear of contracting COVID-19 is not unwarranted," she said in an 87-page ruling, also in May 2020. "Such a fear permeates American society, and in a prison environment such fears are most likely heightened."

"But nothing in the complaint rises to the level of circumstances that warrant (release from custody), the judge continued.

She described the BOP's efforts to curb the virus at FCI Fort Dix as "particularly successful" and noted inmates had other options to seek early release. 

Bumb observed the BOP had received expanded authority to consider home confinement for at-risk inmates "who are nonviolent and pose minimal likelihood of recidivism."

Inmates also could pursue “compassionate" release through individual actions in federal court. Ten men had used that avenue to leave FCI Fort Dix during the pandemic’s early weeks, she noted.

Among other points, the judge noted the BOP had an obligation to protect public safety, and could not “simply release prison populations en masse onto the streets.”

The court fight over the vaccine mandate, waged in state courts, was brought by the New Jersey State Policemen's Benevolent Association and the New Jersey Superior Officers Association. 

They contended Murphy lacked the authority to mandate vaccines and argued his order violated officers' civil rights, among other claims.

The mandate — imposed Jan. 19 as the Omicron variant was spreading — required first-dose vaccinations by Feb. 16 for corrections officers and others who work in “high-risk congregate settings. 

Officers face a May 11 deadline to receive a second dose.

"We understand employees may have legitimate personal concerns with receiving the vaccine due to health and religious beliefs,” said Velez, who noted the DOC has developed "an objective exemption process."

She said the agency has issued “the first round of notifications" to employees who missed the Feb. 16 deadline for "the first vaccine of a two-dose series or single J&J vaccine."by Feb. 16.”

But, Velez added, “The department realizes that the most recent notifications include individuals that may have forgotten to submit confirmation of their vaccination status or failed to request an exemption.”

As a result, she said, the agency's still collecting information about exemptions "and is not prepared to share data related to this effort.”

A three-judge panel upheld the vaccine mandate on Feb. 11, rejecting the officers' arguments in a sometimes-biting 34-page decision.

It found Murphy had the authority to order the mandate and the officers had no constitutional right to refuse vaccinations.

Responding to arguments that the departure of unvaccinated officers would create severe staff shortages, the decision noted corrections facilities were already short-handed — due to an upsurge in COVID-related sick leave.

It noted more than 3,300 DOC employees — 45.3 percent of the total — took sick leave due to the virus between Dec. 2, 2021, and Jan. 27, 2022.

Those employees could not work until they had completed a period of self isolation — creating what one DOC official described as "the most critical staffing shortage” in more than 20 years.

The decision observed only 41.2 percent of DOC staff reported getting a first shot of the vaccine by Jan. 28 of this year. That compared to 61.6 percent of inmates.

Similarly, the ruling said, “We are told the Juvenile Justice Commission was required to temporarily close and consolidate housing units and deny vacation leave time while also requiring healthy staff to work more over time.”

Unvaccinated employees, although just 32 percent of the commission’s workforce, “were responsible for nearly half the positive cases," it said.

The "profound effect" of unvaccinated workers at DOC and JJC "provided ample reason" to cover the agencies' officers under the mandate.

The ruling also slammed the officers for “focusing solely on their own self-interests,” and not considering COVID’s impact on inmates.

“In the final analysis, there are times when individual self-interests like those asserted by (the officers) must take a backseat to the responsibilities we all have toward each other,” it said.

Four days later, the state Supreme Court voted 4-2 to deny a stay of the appellate ruling, which had been sought by attorneys for the PBA. That doomed the effort to block the mandate before it could take effect for them.

But the appellate ruling and later comments by Murphy provided one more illustration of the fast-changing perceptions of COVID-19.

The court decision, in discussing efforts to view the pandemic as something that had become normal,  cited a 1964 movie satire about nuclear war: “Dr. Strangelove or: How I stopped worrying and learned to love the bomb.”

The SOA, the ruling said, “seems to believe we all need to ‘learn to stop worrying and love the virus.’”

“In other words, this argument suggests that once disasters and emergencies are with us for more than a short while, they … simply become a way of life,” said the decision, calling that an “illogical or dangerous contention.”

Indeed, it asserted “an unreasoned and unreasonable resistance to vaccinations … may be the very thing preventing our emergence from this pandemic and a return to normalcy.” 

A little more than two weeks later, Murphy suggested the post-pandemic era was near in New Jersey with the waning of the Omicron wave.

While still emphasizing the need for vaccinations and other public health measures, the governor lifted the state’s COVID-19 public health emergency effective March 7.

“The time has come,” he said then, “to move toward normalcy.”  

Jim Walsh covers public safety, economic development and other beats for the Courier-Post, Burlington County Times and The Daily Journal.

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