In late April 2020, prisoners at Arkansas’ Cummins Unit knew that the novel coronavirus, which causes COVID-19, was spreading among not only the prison’s inmates but also its staff. But a prisoner identified as Marco was shocked to learn that the state Department of Corrections (DOC) was telling infected guards to report to work, according to a story in Mother Jones.
Despite offering median pay for guards that is higher than at least 12 other states – including every neighboring state except Texas – Arkansas reported 651 unfilled guard positions in March 2020, a vacancy rate of nearly 14 percent. That was at the beginning of the coronavirus pandemic, before the number of infected guards began climbing. As of August 7, 2020, it stood at 303, with 42 of those not yet recovered.
As he lay sick with the disease, Marco overheard a guard tell other prisoners that many of his coworkers had tested positive. The guard, who was passing out toilet paper and soap, said, “All of us got it, but they’re telling us to work anyway if we’re not showing symptoms.”
DOC spokesperson Solomon Graves confirmed the policy to Mother Jones, saying it was based on guidance for “critical infrastructure workers” issued by the Centers for Disease Control (CDC). According to Graves, the guidelines provide that they may continue working after “potential exposure to COVID-19” so long as they remain asymptomatic.
But the CDC says its guidelines state that “if staff tested positive, they should self-isolate at home until they have met CDC criteria for release from isolation in consultation with their physician,” according to spokesperson Bert Kelly. The guidelines also recommend that asymptomatic people should stay at home for at least 10 days after testing positive or until they test negative twice in a row.
On May 19, 2020, Judge Kristine G. Baker of the U.S. District Court for the Eastern District of Arkansas declined to issue an injunction request filed by attorneys for the American Civil Liberties Union (ACLU), the Legal Defense Fund of the National Association for the Advancement of Colored People (NAACP) and Disability Rights Arkansas. Their lawsuit – Frazier v. Kelly, filed April 21, 2020 – asks that guards be prohibited from working while infected. While Baker expressed concern about reports that some DOC guards were not wearing masks, she said it was not proven there was a violation of prisoners’ rights sufficient to enjoin the DOC policy before she heard the case.
According to an April 24, 2020, memo from the state Health Department, which was filed as part of the lawsuit, contagious guards must take certain precautions: They may only enter areas that house prisoners who have also tested positive, maintaining 6 feet of distance and abstaining from mingling with other guards in the break room.
“You are to travel directly from home to work with no excursions, detours, or stops,” read the memo, signed by state epidemiologist Dr. Jennifer Dillaha. “If you begin to have symptoms such as fever, cough, or trouble breathing, or otherwise if you feel sick, you must immediately notify your supervisor and immediately leave.”
DOC’s policy worried at least one legislator. State Sen. Joyce Elliott said she didn’t know of “any other employers who are asking their workers to come to work if they are positive — it’s only in our prison system.”
“It sends a message about how we value certain lives more than others,” she added.
An amended complaint filed on July 13, 2020, highlights the explosive growth in DOC’s number of COVID-19 cases over the 12 weeks since Frazier v. Kelly was first filed. As of July 30, 2020, Arkansas ranked sixth in the country for COVID-19 cases among its prisoners and eighth for deaths. The state’s DOC reported on August 7, 2020, that of its nearly 14,800 prisoners, 9,525 had been tested with 4,985 positive results. A total of 32 prisoners had died from the disease, with another 637 yet to recover.
As he recovered from COVID-19, Marco said he feared being reinfected.
“We’re starting to see people die around here,” said the 41-year-old, who has served 21 years of a life sentence. “I don’t have a death sentence. I don’t want my life to end in prison from COVID-19.” See Frazier v. Kelley, 2020 U.S. Dist. LEXIS 90821.
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Related legal case
Frazier v. Kelley
|Cite||2020 U.S. Dist. LEXIS 90821|