As the news spread on Sunday evening that convicted rapist Harvey Weinstein had tested positive for COVID-19, some called his diagnosis justice, some called it karma, and some questioned why an incarcerated sex criminal was able to receive a test when so many others can’t. But all of this discourse missed an important point: Weinstein’s diagnosis is proof of the deplorable conditions of the American carceral system.
It's not necessary to empathize with Weinstein, specifically, but the fact that he contracted the virus at Rikers Island — a jail that holds people who are awaiting trial, including those who have been arrested for minor crimes but cannot afford even minimal bail — is a reminder that our carceral system is responsible for the lives of millions of people, all with very different stories, none of whom should have their human rights ignored. Our incarcerated populations are incredibly vulnerable and face systemic barriers to basic protections from the rapidly spreading coronavirus. Yet elected officials have been slow to take steps to guarantee their safety, and the situation is poised to quickly unravel even further.
For weeks, criminal justice reform advocates’ message in New York has been simple: Reduce populations in the state’s crowded jails — including the heavily trafficked Rikers Island facility — before the pandemic worsens, or risk having blood on their hands. On March 18, the first case of coronavirus was confirmed at the Rikers Island jail complex. By Sunday, the Department of Corrections said that the number of confirmed cases within the city’s jails had ballooned to include 17 sick staffers and at least 29 sick inmates. One of those inmates was Weinstein, who had been transferred from Rikers to Wende Correctional Facility, a state prison, where he will serve out his sentence and where at least one other inmate tested positive. Wende quarantined seven employees that came in contact with infected inmates.
In a letter addressed to New York’s criminal justice leaders last week, Board of Corrections interim chair Jacqueline Sherman highlighted the need to rapidly decrease the jail population, citing “structural barriers to social distancing, hygiene, and sanitation” as critical threats facing the currently incarcerated amid the coronavirus outbreak. Despite the urging of organizers, however, the mayor and governor have thus far been slow to act. On Saturday, de Blasio authorized the release of 23 prisoners from Rikers and was reported to be weighing the release of some 200 more individuals by Monday morning.
“It was such an obviously, hopelessly inadequate response. There are more than 5,000 people on Rikers Island and the math is not complicated. Thousands of people need to be released if tragedy is to be averted. People will die,” Rebecca Kavanagh, a legal analyst and criminal defense attorney, told Refinery29.
“You could release about half of the people on Rikers Island if you released people who were there because they technically violated parole, meaning they missed a meeting or broke curfew or tested positive for drugs, and if you released people who were serving sentences of less than a year for low level offenses,” Kavanagh explained. “The other half of people on Rikers Island are being held pre-trial because they couldn’t afford bail. They are legally innocent but poor. Jail could literally become a death sentence for people who didn’t have the means to buy their freedom.”
New York isn’t the only state currently facing mounting pressure to reduce its prison populations. California has urgently entered into discussions about how to offset the health-threatening overcrowding that currently plagues its prison system and is also working to ensure that fewer people are arrested. In Ohio’s Cuyahoga County, 200 low-risk, non-violent incarcerated people were released on Saturday in an effort to reduce the spread of coronavirus. And, in Massachusetts, advocates are asking for the compassionate release of non-violent and elderly inmates who are most at risk of contracting the virus.
"It's like an approaching tsunami. Once it hits, it's too late," James Pingeon, an attorney with Prisoners' Legal Services of Massachusetts, told the Washington Post. "I get that opening the doors of all the prisons is not realistic, but we should release as many that it's safe to release in order to avoid a situation like the one at Rikers."
In New York, Governor Cuomo has not indicated whether or not he’d be willing to use his broad executive authority to signal to parole boards, district attorneys, and judges that hundreds of low-level offenders should have their cases litigated at a less deadly time. But some civil liberties groups, including the ACLU, have urged governors around the U.S. to consider releasing incarcerated persons who are elderly or have preexisting conditions that would make them more susceptible to coronavirus if infected.
As a society on the verge of having to cope with unimaginable losses to human life, we should treat the Weinstein news as a harbinger of things to come, and as an opportunity to speak for those who are essentially voiceless and are directly in harm’s way. Even while incarcerated, inmates maintain their 8th Amendment right protecting them against cruel and unusual punishment. Let Weinstein’s diagnosis be a chance to affect positive change within the carceral system — this might just be the first good thing he’s ever done.