Louisiana has emerged as a COVID-19 hotspot, with among the highest contraction and growth rates in the nation. The state also has the highest prison and pretrial incarceration rates in the world. Those two facts might not seem related, but they are already interacting in a tragic way: Conditions in jails and prisons make them highly vulnerable to COVID-19, allowing the virus to spread like wildfire. The potential impact could be devastating for incarcerated people and the broader community, which is already under immense strain. Already, five people incarcerated at a federal prison in Oakdale have died from coronavirus complications. 

The ACLU of Louisiana is fighting back on multiple fronts. This week, we filed a lawsuit against Oakdale Federal Prison to release people who are most vulnerable to COVID-19. Last week, in response to a troubling executive order, we sent a letter calling on courts to honor legal timelines for the filing of charges for people in custody, and to uphold due process rights during the pandemic. We are also demanding evidence-based plans for the prevention and management of COVID-19 in state prisons, jails, and juvenile facilities.

Public officials should be doing everything they can to stop the spread of the coronavirus. Instead, buried in Gov. John Bel Edwards’ recent emergency executive order is a provision that could do the opposite. The order suspends legal deadlines for district attorneys to file charges against people held in jail, which violates due process rights by leaving thousands of Louisianans to languish in legal limbo — many held without charge or even access to counsel. Our landmark report of Louisiana’s pretrial system — “Justice Can’t Wait” — found that 57 percent of those incarcerated in our jails are being held for a low-level offense, without charge or conviction. 

History tells us that the consequences of suspending due process at a time of emergency could be disastrous. During Hurricane Katrina, the state issued a similar order to suspend court deadlines to present charges or release people from prisons and jails. The result was catastrophic: thousands were stuck in unlawful detention as a historic disaster inundated Louisiana. As flood waters rose, deputies at the Orleans Parish Prison abandoned their posts and left hundreds of  people in their cells, some standing in sewage-tainted water up to their chests in the dark, powerless jail. People went days without food, water, and ventilation. Even some prison guards were left locked in their posts to fend for themselves, without any evacuation plan or emergency training. Then, like now, many of those stuck in jail during the emergency had not been charged.

We face a very different disaster in COVID-19, but the lessons of Katrina remain. Louisiana must not abandon people in jails and prisons as a deadly virus sweeps through the state. 

Public health experts and law enforcement officials have warned that jails are “petri dishes” for the spread of COVID-19. Social distancing is impossible in jails, prisons, and detention sites, where sometimes dozens of people are crowded into single cells. It’s also difficult to practice good hygiene, with limited access to soap and water. Hand sanitizer is often considered contraband. These conditions make these facilities a breeding ground for contagious infections and diseases. The larger the number of individuals incarcerated, the higher the likelihood and scope of a related outbreak.

Incarcerated people are not the only ones at risk of contracting COVID-19 — corrections officers are also highly vulnerable. And because these employees return home each night, they can unintentionally carry the virus back to their families and communities. Louisiana is already a COVID-19 hotspot, and the governor’s order to suspend court deadlines — thereby crowding more people into jails and prisons — is a disaster in the making. 

Black and brown communities are likely to bear the brunt of this disaster, as they did during Hurricane Katrina. Due to racial bias in the criminal justice system, people of color are more likely to be arrested and charged, and are often handed longer sentences than white people for the same offenses. Nationwide, Black people already face higher infection and death rates for COVID-19, particularly in Louisiana, where about 70 percent of the people who have died are Black. 

Stakeholders in the criminal legal system have the power to mitigate the risk presented by COVID-19. State Supreme Court Chief Justice Bernadette Johnson sent a letter calling on district judges to refuse to funnel even more people into the system. Police officers should use their discretion to issue warnings rather than making custodial arrests, and engage in creative, compassionate problem-solving. And finally, Gov. Edwards must lift the order to suspend court deadlines and release all those incarcerated who are vulnerable to COVID-19, starting with the elderly and those with underlying medical conditions. By taking these critical steps, we can stem the spread of coronavirus throughout jails, prisons, and the broader community. 

Louisiana is already overwhelmed by the COVID-19 crisis. We cannot put even more people in harm’s way by continuing to needlessly crowd jails and prisons. We at the ACLU of Louisiana hope to work with the governor and the State Supreme Court to ensure that these emergency measures are implemented in a way that prevents us from repeating the terrible history of 2005, and protects the public from COVID-19. It is possible to both protect individual rights and protect the public, and we hope to work together to do so.

Alanah Odoms Hebert, Executive Director, ACLU of Louisiana

In a desperate effort to slow the spread of COVID-19, state and local officials are following the advice of public health experts to impose severe restrictions on American life, such as social distancing and shelter-at-home orders. Unfortunately, the institutions that have the most resources available to carry out this task are not public health, medical, or housing authorities. They are our law enforcement and criminal legal systems, which typically operate by criminalization and punishment.
 
There’s a bitter irony to this: The tactics that law enforcement officials frequently use to protect people —arrests and detention — are more likely to put people in harm’s way. As the ACLU, public health experts, and many law enforcement officials have warned, jails are “petri dishes” for the spread of COVID-19. In New York City’s Rikers Island jail, for example, the jail’s chief doctor says that despite the best efforts of medical staff, there is “a public health disaster unfolding before our eyes.” The answer to this problem is clear: Authorities must reduce jail populations both by limiting arrests and releasing the people who are already held in jail.
 
While we may need to accept restrictions on mobility that public health authorities identify as necessary during this crisis, these restrictions must be narrowly tailored and enforced equitably. In spite of public health guidance, across the country, police continue to arrest people for failures to socially distance, which only exacerbates jail crowding and forces more people into dangerous conditions. This endangers their lives — along with the lives of their families, jail staff and their families, and the broader community. In Puerto Rico, for example, police have arrested more than 500 people for violating an island-wide 9 p.m. curfew, even as police stations shut down due to officers being quarantined. 
 
Just as police crackdowns for drug offenses are disparately focused on the most marginalized communities, we are concerned that COVID-19 related restrictions will be targeted at and most aggressively enforced against people of color and low-income people — not because of race-based differences in the underlying conduct, but because of racially disparate police enforcement patterns. As with the well-documented disparate enforcement of drug offenses, there are an increasing number of examples of wealthy white people refusing to follow public health guidance but not suffering the same criminal justice consequences as Black, brown, and poor people.
 
Such punitive enforcement often overlaps with other law enforcement practices that endanger public health, including continuing to make arrests for low-level offenses and detaining people based on suspected immigration status. For example, last week in Elkhart, Indiana — a city that already has a troubling record of police misconduct — officers stopped a Latino driver, arrested him for driving with a suspended license and violating the governor’s emergency travel order, and then held him in jail on an ICE detainer.
 
It’s important for police chiefs to ensure more equitable enforcement patterns, as well as to be sensitive to the fact that many employees of businesses deemed essential are part of groups often subject to police harassment. These employees need to be able to go about their daily work and errands without constantly being stopped and forced to prove their essential status.
 
Additionally, while officers are neither public health nor medical experts, and are unlikely to receive this training in a moment of crisis, it’s critically important for law enforcement leaders to communicate to officers that they cannot arrest their way out of this pandemic. Instead, they must adopt tactics that reflect their public health role.
 
The goal of these tactics should be to promote public health by preventing harm. Instead of making custodial arrests, officers should explain the rules, issue a warning, and engage in creative, compassionate problem-solving. Sheltering at home, after all, is easiest for people who are financially comfortable and have a stable home life. When people who lack this stability — people who are unhoused, people who are experiencing domestic violence, and teens who are stuck in unstable homes without the refuge of school — have difficulty complying, it’s important for officers to try to address underlying issues in conjunction with public health authorities, rather than using a crackdown to spur compliance.
 
Additionally, even when a person lacks a reason for violating the restrictions, officers should keep in mind that financial sanctions can have serious ramifications, especially given the economic disruption caused by COVID-19. Although some public health orders give officers the authority to issue citations that create a criminal record and carry substantial fines, this should be a last resort.
 
Fortunately, most jurisdictions — with some disturbing exceptions — say they are not using arrest as the primary means of enforcing these orders. For example, in Charlotte, North Carolina, the police department intends to “manage the order through voluntary compliance, education, dialogue, and cooperation” with enforcement actions being used as a “last resort.” In Pennsylvania, Gov. Tom Wolf stated that law enforcement will focus on ensuring residents are aware of the order and informing the public of social distancing practices rather than enforcement. That said, it is important to monitor whether on-the-ground practices match these public announcements; in New York City, multiple people have already been arrested for “fail[ing] to maintain social distancing” despite the mayor’s statements that such violations would be addressed through warnings and fines.
 
Given the heavy role that law enforcement will play in promoting compliance with public health restrictions, local residents should urge their police departments to issue clear guidance to officers on how to wield these powers responsibly and with compassion and empathy. If not, enforcement could result in the same patterns of police abuse that communities of color and low-income communities already experience. The risks of adopting a traditional, punitive law enforcement approach are too high, not only for those targeted, but for the community as a whole.
 

Carl Takei, Senior Staff Attorney, ACLU’s Trone Center for Justice and Equality,
& Paige Fernandez, Policing Policy Advisor, ACLU

Every 10 years, the federal government conducts a census to count everyone living in the United States. For people of color, especially Black people, the census has traditionally been exclusionary and deeply flawed.

Article 1, Section 2 of the Constitution was intentionally designed to protect the institution of slavery by immorally reducing those enslaved to three-fifths of a human being. It remains the only reference to slavery in the Constitution and was the law when the first census was completed in 1790 and for 75 years thereafter until the 14^th Amendment was passed. Two hundred thirty years later, Black and Brown communities have been undercounted in every census — reducing our communities, in essence, to three-fifths.

Significant institutional and systemic barriers remain to accurately counting our communities, which is why Black Lives Matter Seattle King County is coordinating the Demand to be Counted 2020 Census Project in Washington state to ensure that everyone is counted in this census. We are being left out and made invisible in the census —  meaning a reduction in resources for our communities. Together, we can change this.

Efforts to politicize the census are intended to prevent us from being accurately counted. Among other recent examples, in advance of the 2020 census, an effort to improve the clarity and accuracy of the questions about race and ethnicity was rejected, and there was an attempt to add a citizenship question. This effort to add a citizenship question was not successful — there will not be a citizenship question on the census. But as a result of these efforts, we are either terrified the information will be used to target us and our friends and family for illegal detention or deportation, or we are outraged because failing to ask certain questions means the fullness of who we are as people is discounted.

This year will be the first time the census will be conducted online. While people can still fill out the census by mail or by phone, the internet count poses another barrier to accuracy. Black and Brown communities have less access to the tools needed to be counted — another consequence of years of discriminatory and insufficient policy and investment by the federal government in education, net neutrality, and infrastructure.

We understand the census is far from perfect. Nevertheless, it is the process the government uses to decide how billions of dollars in funding to states and our communities will be divided and spent. Demand to be Counted is an effort to address these realities — and barriers — head-on, and to provide outreach and education to those of us who are marginalized and disenfranchised.

Being counted in the 2020 census is as important as preserving and restoring the Voting Rights Act, reversing gerrymandering, protecting a person’s right to choose, and ending mass incarceration and the school-to-prison pipeline. The list is endless.

This is a huge challenge. It takes all of us to make sure everyone is counted in 2020. This is something we need to be intentional about in solidarity with each other, in fighting for economic and social justice for those who need it the most.

If we aren’t counted, we are erased.

Ebony Miranda, Board Chair, Black Lives Matter Seattle-King County