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Jail and prison staff need a clear understanding of evolving law—including inmate health law and emerging COVID-19 policies. In a webinar hosted by the American Jail Association and sponsored by LexisNexis®, Professor Margo Schlanger, JD, shared important legal updates and insights for corrections officers and administrators.
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Schlanger recommends relying on the Centers for Disease Control and Prevention (CDC) and on AMEND, which provides training policy materials for people who run jails and prisons.
As of Summer 2021, Schlanger said both organizations agree that jails and prisons still need masks, social distancing, some limits on cross-unit movement transfers and encouragement of vaccination by staff and inmates.
“Nationally, jails and prisons are reporting 30% to 40% vaccination rates,” Schlanger said. “As long as the vaccination rate stays low, some of the precautionary measures that are tamping down transmission will have to stay in place in jails and prisons,” Schlanger says.
Courts have been reluctant to impose liability for facilities that (a) were confused in the beginning of the pandemic, (b) have followed the CDC guidance, or (c) have been doing the best they can. A fair number of cases have imposed injunctive relief: more social distancing, hygiene practices and the like. A few cases have gone so far as to insist on consideration for bond/parole.
“Hepatitis C is extremely prevalent among the incarcerated population, affecting an estimated 16% of inmates, much higher than in the non-jail, non-prison population,” said Schlanger. “And it’s extremely treatable, but only by spending a lot of money. And so it’s been the subject of a good deal of litigation.”
“Over a dozen states have had class actions certified against them alleging systemic failures relating to Hepatitis C treatment,” said Schlanger. “After the first litigation hurdle,” she noted, “nearly all those cases have settled with court-ordered treatment.”
“Treatment is now more reasonable in price,” Schlanger noted, adding, “$25,000 sounds like a lot, but it used to be $100,000—and the treatments have gotten a little shorter. Experts say the public health benefit of treating hepatitis C among people who are behind bars for a considerable time and are amenable to treatment is pretty clear. As more and more jails start treating it, the choice not to test, not to evaluate and/or not to treat may pose more of a litigation risk.”
Schlanger shared the following points based on evolving transgender inmate case law and the regulations under PREA:
“Prevalence of various kinds of disabilities in jails and prisons is extremely high,” said Schlanger. She outlined three jail and prison obligations pertaining to the ADA and the Rehabilitation Act:
“Under nondiscrimination provisions, facilities are not allowed to create rules that intentionally and categorically exclude people with disabilities from opportunities to participate in program services and activities,” she explained. If a person who could, with reasonable modification to various rules, participate in a program or service, the statute does not allow the facility to decline to implement the reasonable modification and bar the person from the activity. That could involve people with visual or hearing impairments, mobility challenges or other covered disabilities.
About Margo Schlanger, JD
Margo Schlanger is the Wade H. and Dores M. McCree Collegiate Professor of Law at the University of Michigan, and is a leading authority on civil rights issues and civil and criminal detention. She teaches constitutional law, torts and classes related to civil rights, jails and prisons. She also founded and runs the Civil Rights Litigation Clearinghouse. Schlanger earned her JD from Yale University. She is the author of dozens of law review and other scholarly articles, and is the lead author of the casebook Incarceration and the Law.