Public Health Is Social Justice, Social Justice Is Public Health: The Essential Work Of Louisiana Public Defenders During A Public Health Pandemic

Written By: Ryan K. Thompson and Jessica F. Hawkins

Before we begin, the authors believe it is important to define the following terms, Public Health, Social Justice, Health Disparities, Vulnerable Populations, Epidemic, Pandemic and Essential Worker(s).

The American Public Health Association (APHA) defines Public Health as “. . .the health of people and the communities where they live, learn, work and play.” The United Nations defines Public Health as “[T]he art and science of preventing disease, prolonging life and promoting health through the organized efforts of society.” Social Justice is defined as “[The] guaranteeing [of] fair outcomes for all through social protection. . .” It is our contention that the following statement by Dr. Rueben C. Warren best encapsulates both definitions, “Public Health is Social Justice and Social Justice is Public Health.” Therefore, to be a social justice advocate, is to be a public health worker, and to be a public health advocate is to be a social justice worker.  

Social Justice/Public Health Workers use data to advocate on behalf of the public. Particularly, health disparity data.  Health Disparities are defined as “preventable differences in the burden of disease. . . that [is] experienced by [vulnerable]  populations.” In America, Vulnerable Populations are defined as racial or ethnic minorities, the socio-economically disadvantaged, and the incarcerated.  Thus, it is imperative that Public Health/Social Justice Workers in Louisiana focus upon vulnerable populations during this pandemic to prevent that population from contracting COVID-19 and to prevent unfair outcomes (disparities) in that population.  

An Epidemic is defined as an increase, often sudden, in the number of cases of a disease above what is normally expected in that population in that area.  A Pandemic is defined as an epidemic that has spread over several countries or continents, usually affecting a large number of people. The disease known as COVID-19 is a pandemic currently affecting multiple continents including North America and subsequently affecting vulnerable populations in Louisiana. Thus, it is imperative that essential workers advocate for the health of vulnerable populations at this time.  

    

  Worth noting is that each state is given the autonomy to define who are Essential Workers. The state of Louisiana defines Essential Workers as:

1. Healthcare workers and caregivers;

2. Mental health and Social Service workers;

3. Pharmacy employees;

4. Workers supporting groceries, pharmacies and other retail sales of food and beverage products;

5. Restaurant carryout and quick-serve food operations and food delivery employees;

6. Farm workers;

7. Electricity and Utility Industry Employees;

8. Critical Manufacturing Employees (medical supply chains, energy, transportation, food, chemicals);

9. Petroleum, Natural, and Propane Gas Workers;

10. Transportation and Logistics Workers;

11. Communications and Information Technology Employees; and

12. Financial Services and Banking Industry Employees

Though Louisiana’s Public Defenders, Assistant Public Defenders, and Conflict Counsel represent 90% of people charged with crimes in the state they are not considered Essential Workers. Using the above definitions–and supporting references–the authors will make a case for why Louisiana Public Defenders and other related counsel are de facto Essential Public Health Workers. The impetus for this theory is embodied in the Louisiana Public Defender Board’s Mission Statement, which reads:

In pursuit of equal justice, the Louisiana Public Defender Board advocates for clients, supports practitioners and protects the public by continually improving the services guaranteed by the constitutional right to counsel. Through its commitment to performance standards, ethical excellence, data-driven practices and client-centered advocacy, the Louisiana Public Defender Board oversees the delivery of high-quality legal services affecting adults, children and families, and supports community well-being across Louisiana.

The Problem

At the tail end of 2019 and the beginning of 2020, the world was struck by a pandemic. That pandemic was the Novel Coronavirus, commonly referred to as COVID-19.  COVID-19 is an infectious disease caused by a newly discovered coronavirus. According to several publications, the coronavirus family was first discovered in chickens in 1937. Human coronaviruses were researched by scientists in the 1960s. However, according to the Guardian Newspaper, Chinese doctors began seeing cases of SARs like infections in human beings around December 2019. Chinese doctors would later classify that mystery disease as COVID-19, with the majority of the cases occurring in the Chinese province of Hubie. It is believed that New York City, New York is the epicenter of the virus in the United States of America. However, soon thereafter community activists, scholars, professionals, journalists, legislators, and lay people began to ask the question: What is the race of those being tested, diagnosed, treated, and dying from COVID-19? As the data began to be published to the public, what people of African extraction in America have known for centuries was now proven! When White folks have a cold, Black folks have the flu and die from it!  

According to Wisconsin’s Department of Health Services, during the month of March 2020, people of African extraction accounted for 100% of those who died from COVID-19 complications. Furthermore, the majority of Milwaukee’s confirmed cases were concentrated in people of African extraction’s neighborhoods. Michigan also released race specific data for COVID-19. People of African extraction were 40% of all COVID-19 deaths in that state while only accounting for 14% of the state’s population. In the state of North Carolina, early data shows people of African extraction are disproportionately affected by COVID-19.  In Cook County, Illinois, residents of African extraction comprise only 23% of the population however, they account for 58% of COVID-19 related deaths. Turning to Louisiana, 70% of COVID-19 related fatalities are persons of African descent.

A. LOUISIANA HEALTH DISPARITIES

According to the U.S News and World Report, Louisiana ranks 45th out of 50 for healthcare. In 2018, The United Health Foundation published a report that stated Louisiana was 50th in healthcare challenges, 47th in clinical care and 48th in health outcomes. Driving these poor health outcomes are Louisiana’s Health Disparity numbers. According to the United States Census Bureau, people of African extraction make up just 32.7% of the state’s population. Louisiana has a 36.8% obesity rate, which places the state 4th out of 51(when including Washington D.C.) in America.  In 2018, people of African descent in Louisiana had a 43.5% obesity rate which was almost 10% higher than Whites and 12% higher than Latinos in the state. In 2018, Louisiana had a 14.1% diabetes rate, which ranked 4th out of the 51 other states. The number of diabetes deaths for people of African extraction  was 43.7 per 100,000 while for Whites in the state it was 20.9 per 100,000. The number of heart disease deaths for people of African extraction in Louisiana was 238.4 per 100,000. In contrast, Whites were 202.8 per 100,000. This is a stark difference, amounting to about a 33 point disparity. Louisiana is 50th this year, replacing Mississippi as the state with the greatest health challenges. In an article published in The Atlantic magazine, Van Newkirk states that,”[C]oronavirus related deaths in Louisiana are still among victims over 70 years old. Of those who contracted the virus 43% of all reported deaths have been people under 70 years old.” He goes on to state that “New Orleans is on pace to become the next global epicenter of the pandemic.”

On April 6, 2020, Louisiana Governor John Bel Edwards stated, “Slightly more than 70% of deaths in Louisiana are African Americans.” With people of African extraction making up 66% of Louisiana’s incarcerated population, it logically follows that the same health disparities which exist in the general population also exist in the incarcerated population.  Hence, what drives the authors to the issue at hand: One of the most–if not the most–vulnerable populations in the state of Louisiana is our jail population.  

B. Louisiana’s Most Vulnerable Population Is Not Afforded the Privilege of Social Distancing

In America, 2.3 million people are held in one of our nation’s 3,000 local jails. Driving this number is Louisiana, the incarceration capital of the world, jailing and imprisoning 719 of every 100,000 of its citizens. People of African extraction are overrepresented in that population. The authors remind readers that any person arrested in the United States has the presumption of innocence until proven guilty. This is known as the pretrial phase and it goes without saying that Louisiana is detaining innocent men and women of African extraction during this pandemic. During the pretrial phase in Louisiana, judges are tasked with ensuring that defendants appear before the court to answer for their alleged crimes and to consider the safety of any other person(s) and the community. A key component in the pretrial phase is the bail system. Judges, commissioners, and/or magistrates are asked to consider ten factors when establishing the amount of bail; a critical determinant in whether a citizen can remain free during the pretrial phase. However, poor and low-income people of African extraction and their families suffer most under this system, because of the lack of wealth in that community. Therefore, it holds true that if citizens of African extraction are unable to afford bail, they will be the ones who bear the brunt of this pandemic. This is because about 75% of people in our jails are in the pretrial phase. Acclaimed columnist Charles Blow said it best when he stated, “. . .in the real world, this virus behaves like others, screeching like a heat-seeking missile toward the most vulnerable in society. And this happens not because it prefers them, but because they are more exposed, more fragile and more ill.” If this is true of non-incarcerated people, then it must hold true for those who cannot practice social distancing, due to their status as incarcerated individuals.  

It is widely accepted in the scientific community that jails are notorious incubators and amplifiers of infectious diseases. Around the country people have been ringing the alarm about the nature of the threat inside our jails and prison systems. For example, Kelsey Kaufman–who is a former Correctional Officer and Founder and Emeritus Director of the higher education program at the Indiana Women’s Prison–stated that “COVID-19 is also likely to be deadlier inside jails, where a greater share of the population has ‘underlying health conditions’ than on the outside, including 7 percent with diabetes, 20 percent with asthma, 10 percent with heart-related problems, 7 percent with kidney problems, and 26 percent with high blood pressure.” COVID-19 infection at Rikers Island Prison in New York City, New York is 75 times the rate of infection in America. The data also suggest that the rate of infection is 7.5 times the rate in the city.  In the Harris County Jail in Texas, officials announced that an inmate tested positive for COVID-19, and that 30 other inmates inside of the prison were also experiencing symptoms. Officials estimate that more than 500 inmates have potentially been exposed to the deadly virus. In the state of Louisiana, Patrick Jones was the first documented prisoner to die from COVID-19.  Shortly thereafter, 30 inmates, a prison guard, and staff tested positive for the virus. The prison holds 1700 inmates, not counting guards and civilian staff.  Even closer to home, multiple inmates at the East Baton Rouge Parish Prison tested positive for COVID-19 and have since been triaged. According to the East Baton Rouge Parish Sheriff’s website, the prison houses over 1500 inmates and employs over 350 deputies and support staff.

So why should the public care about this public health crisis?  Because Louisiana jails are revolving doors that will allow COVID-19 to spread like a wildfire in a California brush area. Though some will only remain for a short period of time, nationally 10.6 million people will cycle through our jails. That brief amount of time is all that is needed to spread the virus once those persons are released back into the public. Communities of African extraction, whose health is already one of the worst in the country will be particularly affected. Thus, further exacerbating already existing health disparities in that community.  

Recommendations

Considerable measures are being taken throughout the state and the nation to protect other vulnerable populations who often congregate in large numbers. For instance, New Orleans Mayor, LaToya Cantrell, devised an ingenious measure to “flatten the curve” by temporarily relocating the city’s homeless population to the empty rooms of the local Hilton Garden Inn. This 30-day transition from homeless encampments to hotel rooms affords these citizens the opportunity to “self-isolate” as well as adhere to all suggested cleanliness standards now associated with the rapid spread of COVID-19. In populations that are already so vulnerable to disease, actions like these will make all the difference as the city fights to gain control of the virus. Alternatively, going largely unchanged are the conditions of the incarcerated. Notorious for overcrowding and leading the world in per capita incarcerations, Louisiana has long been at the forefront of fights against excessive jail populations. According to the New Orleans Advocate, Louisiana’s most recent “solution” to overcrowding and the fight against COVID-19’s rapid spread in its jails is to send those affected by the virus to Angola (Louisiana State Penitentiary) or Allen Correctional Center.

At the beginning of the COVID-19 outbreak in Louisiana, a letter to Louisiana leaders dated March 19, 2020, was penned by the Louisiana Public Health Institute and the Vera Institute of Justice, emphasizing the need for an immediate reduction in the Orleans Parish Prison population. This letter included requests to effectively assist in ‘flattening the curve’ and stopping the spread of COVID-19 “within a facility where more than 1,000 individuals live in extremely close quarters and cannot practice recommended mitigation strategies.” This request also included: the release of anyone held on $25,000 bail or less, all people arrested for a non-violent crime that would not require a mandatory prison sentence, all people who are arrested for a non-violent crime and who are currently complying with probation for a previous sentence, and all people who are being held pretrial and fall into a high-risk category due to their age and underlying health conditions making them more susceptible to COVID-19. However, the measures suggested by this letter and others like it are not effective without the cooperation of all interested parties. With District Attorneys, probation officers, and police officers across the state still actively arresting non-violent offenders and opposing the release of inmates, attempts to control the spread of COVID-19 within the state’s jails has essentially failed. The egregious acts of prosecutors in some Louisiana district courts have not gone without notice. Many District Attorneys and their assistants have not only opposed motions filed by defense attorneys for bond reductions but have gone as far as drafting motions that include ‘boilerplate language’ to argue that this vulnerable population must stay locked up in jail to protect public health.

As integral participants in the treatment-led response, indigent defense attorneys (Public Defenders, Assistant Public Defenders and Conflict Counsel) are often their client’s chief advocates and as such are often called upon to make treatment recommendations. On a daily basis, these attorneys help courts to determine any of the following: (1) any potential risk(s) a client may pose to the safety of themselves or others in the community; (2) the extent of any preexisting mental health disorders; (3) competency issues; (4) which client will benefit from treatment; and (5) what treatment, if any, is in the best interest of the client. The task of striking an appropriate balance between individual autonomy and a client’s treatment needs is often placed in the hands of attorneys not clinicians. Therefore, it is not a radical idea to see attorneys as Public Health/Social Justice Workers. For example, in the midst of the chaos created by the COVID-19 outbreak, other ‘advanced’ nations like the United Kingdom have taken a holistic approach to their classification of key or essential workers. The UK’s Ministry of Justice recently announced that some legal practitioners would be classified as key workers. This classification enables those persons to continue working as vital members of their local communities, delivering essential services during the ongoing COVID-19 crisis. Thus, the declaration by the Ministry of Justice has seamlessly blended the duties of Britain’s legal practitioners and that of its health care workers. Recognizing the nexus between criminal defense and client health advocacy is more important now than ever. During a time in which racial and health disparities in COVID-19 deaths have become more evident, the state of Louisiana cannot afford to once again come in last place.

Recently, the Louisiana Supreme Court issued guidelines for combatting COVID-19. In furtherance of those guidelines, the authors recommend that Louisiana state and local officials as well as legislative bodies take immediate action to draft and adopt legislation that includes the following measures for mitigating the harm that COVID-19 presents to the overall health of the community and incarcerated people in Louisiana:

1. Classify public defenders, assistant public defenders, and conflict defense counsel as essential health workers allowing them to effectively advocate for clients in need;

2. Draft legislation that allocates sufficient supplementary funding to the Louisiana Public Defender Board and eliminates yearly budget shortfalls;

3. Lowering the current jail populations by providing bond reductions (over the objection of district attorneys) and sign-out bonds for people accused of non-violent offenses, and lift all non-violent probation and parole holds;

4. Require courts to conduct bond reduction hearings via videoconferencing, in an effort to reduce the spread of COVID-19 and continue the administration of justice during the pandemic;

5. Cease all arrest for non-violent crimes and minor drug offenses and issue a summons to limit the exposure of people currently not incarcerated;

6. Supply those persons accused of violent crimes, who do not qualify for release, with adequate COVID-19 protection, e.g. masks, additional soap, and isolated meals or sleeping areas when possible;

7. Provide jail staff with relevant training on the spread of COVID-19 and social distancing practices to combat exposure of employees, their families, and inmates;

8. Provide guards and other support staff with proper PPE such as that suggested by the World Health Organization;

9. Provide detailed directions about COVID-19 prevention to recently released people who may have been exposed to the virus while in detention centers;

10. Allow for the immediate release of pregnant women, non-violent elderly inmates, and people with preexisting conditions that make them high risk for contracting COVID-19;

11. Provide incarcerated individuals with the appropriate tools to combat COVID-19 spread upon release, including but not limited to: ‘self-isolation’ or transitional housing (such as that now being provided for the homeless in New Orleans), and food subsidies (such as SNAP);

12. Waive eligibility requirements and provide health insurance by automatically enrolling newly released persons with Healthy Blue Medicaid; and

13. Provide follow-up visits related to COVID-19.

These recommendations are intended to provide for the public health of all community members.

In closing, as COVID-19 runs its course and communities across the state learn to navigate the pandemic, no one should be left out of the conversation, especially our most vulnerable population. People who are told when to eat, when to shower, and who do not have the privilege of socially distancing themselves in our notoriously cramped jails should not then be released into already struggling communities without proper mitigation tools and resources.

The motivation for the publication of this article was Patrick Jones and all other members of the African Community who suffered untimely–yet preventable–deaths due to the COVID-19 Pandemic of 2020.  

 

 

Special thanks to D.L.H. and the late O.K. for editing support.