Prison overcrowding has been quietly tolerated for decades. But the pandemic is forcing a reckoning.

by Dara Lind, ProPublica

This article was originally published June 18, 2020, by ProPublica, a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Jason Thompson lay awake in his dormitory bed in the Marion Correctional Institution in central Ohio, immobilized by pain, listening to the sounds of “hacking and gurgling” as the novel coronavirus passed from bunk to bunk like a game of “sick hot potato,” he wrote in a Facebook post.

Thompson lives in Marion’s dorm for disabled and older prisoners — a place he described to ProPublica in a phone call as the prison’s “old folks home” — where 199 inmates, many frail and some in wheelchairs, were isolated in a space designed for 170. As the disease spread among bunks spaced 3 or 4 feet apart, Thompson said he could see bedridden inmates with full-blown symptoms and others “in varying stages of recovery. While the rest of us are rarely 6 feet away from anyone else, sick or not.”

“Prison is not designed for social distancing,” said Thompson, who is serving a de facto life sentence (his first parole hearing will come in 2087) for aggravated murder and kidnapping. “That’s not the system’s fault. That’s not the prison’s fault. It couldn’t have been designed with the vision of one day having to social distance for 6 feet. ... It squeezed as many of us in here as it could.”

Nationwide, Marion ranked as the largest recorded coronavirus outbreak of any U.S. institution in a New York Times analysis. Three other prisons, including another packed one in Scotia Township, Ohio, were in the top five. The fifth is the Smithfield pork processing plant in Sioux Falls, South Dakota.

With fears that a second wave of infection will erupt in the fall, some state corrections officials are realizing the coronavirus is a wake-up call, forcing them to confront the problem of prison overcrowding. They’re considering how to achieve social distancing in confined spaces, where inmates are unable to do the only thing that has proven effective in stopping the viral spread.

States and the federal government responded to the initial onset of the coronavirus by releasing some individual prisoners who were particularly vulnerable, although ProPublica found the federal directive was undermined by secretive Bureau of Prisons guidance limiting early release. But even when it looked like the first wave of the coronavirus was subsiding outside prison walls, cases in prisons and jails kept climbing. A Times analysis found a 68% increase in prison and jail cases in May.

In light of this, experts are going further than calling for case-by-case releases, acknowledging that prisons simply have to hold fewer people overall. Pennsylvania Corrections Secretary John Wetzel told ProPublica that he expects his state to incorporate the need for social distancing into its definition of what a facility’s acceptable operating capacity is. Staying under the new capacity limits will require prison populations to be reduced.

“When you look at this objectively, you have to reduce population,” Wetzel said. “Because it’s not realistic to say, for the next 12 months, the whole system in Pennsylvania is going to be locked down so we can mitigate the spread.”

Reducing populations has proven challenging in states like Ohio, where the overall prison population has declined while the inmate count at Marion has increased. When Ohio addressed overcrowding of female inmates by converting a minimum-security men’s prison into a second women’s prison, some of the displaced men were sent to Marion instead; the same thing happened when the state closed a minimum-security prison for cost reasons in 2018. Looming fiscal crises in states across the country are ratcheting up pressure to further cut prison budgets, and efforts to build more prisons are on hold.

Ohio has shelved plans to rebuild the overstuffed Pickaway Correctional Institution (site of the second-largest recorded coronavirus outbreak in the Times analysis) and has no current plans to permanently address overcrowding at Marion.

The Ohio Department of Rehabilitation and Correction has defended its approach to the coronavirus outbreak and answered several questions from ProPublica about specific allegations from inmates. On the issue of overcrowding in general, spokeswoman JoEllen Smith said: “The challenge of any correctional agency is to keep up with the demands of the courts and the criminal justice system. Space allocation has been and will always be a challenge for any correctional system across the country.”

• • •

Overcrowded prisons are nothing new. But while Ohio’s overall prison population is the lowest it has been in since 2006 because of modest criminal justice and sentencing reforms, Marion’s numbers have grown over the last decade, from 2,300 in March 2010 to 2,538 at the end of March 2020, according to official reports.

Ohio stopped reporting the capacity estimates of its prisons to the U.S. Department of Justice in 2015, but an inspection that year showed Marion approaching twice its official capacity. More recent figures show Marion was at 153% of that capacity at the end of March, on the eve of the coronavirus’s arrival. The ODRC’s Smith told ProPublica that Ohio no longer used that capacity measure, because “the design of a facility 60 years ago is not meaningful today due to the changing nature of the populations.”

The same dynamic has played out in other states. Thirty-two states reduced their prison capacity from 2011 to 2018, according to a ProPublica analysis of federal data. Prisons in 21 of those states became, on net, more crowded as a result. Eighteen states that had closed prisons were at or above 100% of their remaining facilities’ official capacity estimates. (Ohio is not counted in this analysis. It is one of two states, along with Connecticut, that do not report any capacity numbers to the federal government. The ODRC’s Smith told ProPublica that Ohio stopped calculating capacity because “there is no longer a national standard.”)

The inmates in those overstuffed prisons became kindling in the coronavirus fire.

“The only thing that we have found that works right now, while we don’t have appropriate therapeutics and we don’t have a vaccine, is social distancing,” said Brie Williams, director of the Criminal Justice & Health Program at the University of California, San Francisco. “And in order to do that, you have to be able to get the physical distance between people to make it happen.”

By the time Marion conducted mass testing in late April, the state reported that over 2,000 prisoners — about 80% of the population — had contracted the virus. Prison authorities concluded that it was easier to isolate infected prisoners by keeping them in their assigned dorms and cellblocks and moving the few healthy prisoners into the gym.

Marion’s high infection rate outraged inmate Jonathan White, a self-described “news junkie” who took advantage of the prison’s temporary addition of CNN and Fox News to the TV options to educate himself about the virus, even as he recovered from it.

Ohio recorded 76 prison coronavirus deaths as of June 12, including 35 at Pickaway and 13 at Marion. Both facilities are overcrowded. Pickaway, like Marion, was over 50% above the last-recorded capacity estimate as of the end of March.

Thompson said he had only a vague sense of what was happening around him as the sickest were carted out and prisoners were moved around as test results came back.

When a Marion guard died of the coronavirus — the first fatality of any guard or inmate in the state — on April 8, he heard the news from his girlfriend in a phone call. “A week or so later,” he said, “they had a moment of silence for his passing.”

Thompson himself was initially told he’d tested negative; he spent two nights in the gym, where, he said, cots were actually spaced 6 feet apart. Then he and a few other inmates were told there had been a mistake — they were infected and had to move back to their original dorms and cellblocks.

The reversal devastated Thompson, who told ProPublica he’d spent years trying to get over a reflexive distrust of prison or medical authorities. “I am not ashamed,” he wrote in a May Facebook post, “to admit to having had thoughts of suicide.”

• • •

In most states, there’s officially no such thing as an overcrowded prison, since there’s no limit to how many people can be put in a facility.

The federal Bureau of Justice Statistics, the DOJ arm that collects state criminal justice data, has three metrics for measuring prison capacity. In practice, all of these are subjective assessments made by a state’s prison officials. Even so, many prison systems are at or over 100% of reported capacity.

When state budget crunches hit, as they did during the 2008-09 Great Recession, they can close prisons whether or not their prison population is actually declining. And closing a prison is quicker, and less controversial, than passing a bill to shorten future prison sentences (or offer good-time credits for current prisoners) in the hopes of reducing incarceration down the road. A 2016 RAND study found that 31 states had closed prisons between 2007 and 2012 because of budget constraints.

The most common response to budget crunches, RAND found, was closing facilities and then cramming more inmates into the remaining ones. Since 2004, Michigan, for example, has closed prisons that held more than 15,000 beds while adding about 5,000 beds to the facilities it kept open. (Chris Gautz, a spokesperson for the Michigan Department of Corrections, told ProPublica that since 2010, all prison closures have been offset by reductions in inmate population.)

In states like Ohio, where incarceration rates were still growing in the late 2000s, adding beds stalled the need for new prisons but came at a cost. “Crowding gives the state a perverse bargain,” the then-director of the Ohio Sentencing Commission wrote in a 2011 report. “Extra inmates add relatively little to total costs. Adding inmates in an over-capacity system only costs about $16/day in food, clothing, and medical care.” Adjusting for inflation, ODRC reports analyzed by ProPublica show that the per-day cost to house an inmate in an Ohio prison dropped from $90.55 (2019 dollars) in 2005 to $80.68 in 2019.

A Supreme Court ruling in 2011 — the same year that Ohio’s Legislature passed a criminal justice reform package — was supposed to mark a turning point for prison overcrowding. That June, the court upheld a lower court ruling that overcrowded prisons in California violated the constitutional ban on “cruel and unusual punishment.” Advocates hoped the ruling would push other states to reduce their own prison populations or embolden judges to release prisoners if conditions got too egregious.

But legislative reforms didn’t always significantly reduce prison populations. In Ohio, it took four years for incarceration numbers to decline. As prisons approached 130% of capacity in 2016 — the level at which experts agree overcrowding becomes an urgent problem — Ohio still declined to build new prisons or release prisoners. In 2018, once incarceration had edged downward, it closed an 800-bed minimum security prison in southeast Ohio and forced other minimum-security prisons like Marion to absorb more inmates.

During the prison-building boom of the 1980s and 1990s, many states shifted from individual cells to dorm spaces. Dorms offered the “cheapest way to warehouse people,” said Joanna Carns, the former head of Ohio’s Correctional Institutions Inspection Committee. Carns resigned from the Ohio post in 2016 under pressure from the Legislature, which criticized her for going beyond her mandate of inspecting individual prisons by analyzing statewide issues like overcrowding. She is now the lead corrections ombuds for the state of Washington.

The American Correctional Association, the prison accrediting body, tried to discourage dorm housing 30 years ago, stressing that “the number of inmates rooming together should be kept as low as possible.” But the “dollars and cents” logic of dorms, as Carns put it, was too appealing.

Compliance with ACA standards generally gives state prison officials some protection in Eighth Amendment lawsuits from inmates claiming prison conditions are “cruel and unusual.” But even the 2011 Supreme Court ruling, declaring California’s overcrowding an Eighth Amendment violation, based its determination on prison officials’ capacity estimates, not personal space.

With little pressure to protect inmates’ space, even the ACA over the years decreased its recommended square footage per inmate in cells holding multiple prisoners from 50 square feet in 1984 to 25 square feet in 2012.

“Nobody is going to let you build more than the minimum standard requirement,” said Andrew Cupples, an architect with the DLR Group, a prison design and consulting firm.

Advocates have argued for years that overcrowded prisons threaten inmate health. This was the core argument in the 2011 Supreme Court decision about California: that the state could not adequately provide health care in a prison with twice as many inmates as it was supposed to have. And experts had long ago learned that controlling disease outbreaks in prison is a prerequisite to controlling them elsewhere.

“A locus of HIV infection was in prisons and jails. And we really were not able to get control of the epidemic in the United States until people began to focus their attention on getting control of the epidemic inside prisons and jails,” Williams, of UCSF, told ProPublica. “Same for hepatitis C, same for tuberculosis.”

Prison architects assume that medical staff can treat any infectious disease that gets in. They don’t design facilities for large numbers of people suffering a new and mysterious disease. The novel coronavirus was something prisons, literally, were not designed to manage.

Overcrowding was a concern at Marion long before Thompson arrived there.

Prison management noted in a 2011 inspection report that “the increase in population” had so badly overloaded the water system that hot water was unavailable at peak shower times. Smith, the ODRC spokeswoman, said the issue was fixed in 2016.

In recent years, multiple inmates told ProPublica, the ceiling of the ground-floor dorms would shake when the inmates above got out of their bunks after daily roll call.

When the coronavirus surfaced, Marion and other packed prisons and jails had no good options for isolating potentially sick inmates — or quarantining them. According to the Marion Star, the prison had nine infirmary beds to serve its 2,500 prisoners.

Once those beds were filled, inmates who raised concerns about coronavirus symptoms were sent to the prison’s only other secluded part: solitary confinement.

Inmates at Marion told ProPublica that isolation cells — known as “the hole” — are regarded as punishment and avoided at all costs. One inmate told ProPublica that during a brief stay in medical isolation, he lost phone privileges. Others said that they did not report virus symptoms to prison staff because they didn’t want to spend time in solitary.

In March, the Centers for Disease Control and Prevention warned prisons that inmates’ fear of medical isolation could encourage the virus’s spread.

When Marion ran out of cells in “the hole,” it packed potentially infected inmates into classrooms, 20 to a room, to sleep. (In many other overcrowded prisons and jails, that wouldn’t be possible — spaces like classrooms and recreational areas have already been turned into bed space.) Finally, the prison grouped all inmates into clusters of 100 to 120 men, based on the dorms or cellblocks they were already living in, and then tried to keep the “households” isolated from each other.

Marion officials made fruitless attempts to create space. Hallways were marked off with spots 6 feet apart as a guide for inmates walking outside of their cells. “We’ve all just gotten up from being in bed areas that were 2 feet apart from each other all day,” inmate Jonathan White recalled.

The ODRC insists that while the whole facility was under isolation, every inmate got a daily temperature and symptoms check. “The only individuals who were not symptom screened during this time period were those who were recovered patients,” Smith told ProPublica. But all 10 inmates interviewed by ProPublica described infrequent temperature checks and said they were not routinely asked about other symptoms. One inmate, who asked to remain anonymous to protect his future chances of parole, told ProPublica he had never been asked about symptoms beyond fever.

Chris Mabe, the head of the Ohio Civil Service Employees Association, which represents Ohio prison guards, told ProPublica he believed daily checks were unlikely. “We’ve been understaffed and overpopulated for decades in the state of Ohio,” he said, and the coronavirus exacerbated staffing shortages. “I just can’t believe that every day that there are five or six people for medical walking around having interviews with 2,000 or 3,000 inmates to see if they’re symptomatic.”

• • •

By late May, Marion was slowly returning to normal. As of May 21, the ODRC reported that 2,101 of Marion’s inmates had recovered from COVID-19. By June 12, that number had declined slightly to 2,088.

Many areas of the facility have allowed inmates to move around normally at mealtimes, though the Americans with Disabilities Act-compliant dorm, where Thompson lives, is still under restricted movement. In theory, masks are mandatory, but some inmates have stopped using them and say guards do not appear to be enforcing the rule. The ODRC’s Smith told ProPublica that “if an individual is found to not be wearing his mask, he is asked and reminded to put it on.”

Thompson is still wearing a mask everywhere. The coronavirus outbreak, and the emotional roller coaster of believing he’d tested negative and then being told the opposite, has made him “paranoid.” He’s washed his cloth masks so many times that the cotton has begun to fray.

Ohio, like many states, used emergency powers to try to thin out prison populations during the outbreak. The result: From March 24 to May 5, Ohio’s prison population shrunk by about 1,582 prisoners — a 3% decline. Although Marion has an older population than most state prisons, inmates there did not hugely benefit from the release policy. The prison’s population dropped by 76 prisoners, or the same 3% as elsewhere.

The reason is simple. Older inmates are often serving long sentences for serious crimes, and governors and state legislatures are still afraid to release violent criminals even if their crimes were committed decades ago. The prisoners most vulnerable to the coronavirus are among the least likely to be released by either emergency clemency or many reform bills.

Meanwhile, building new prisons is almost certainly out of the question. Ohio Gov. Mike DeWine, like most other governors, is looking ahead to drastically reduced tax revenues and already making deep budget cuts.

Before the coronavirus, Ohio was accepting bids to build a new prison to replace Pickaway. “For the planning of the new facility, everybody agreed, give people some living space so that they can self-separate,” Cupples, the architect, told ProPublica.

But in April, because of the expected budget shortfall, the state government rejected all bids for the project.

“The Pickaway project was delayed until further information is provided on Ohio’s capital bill,” Smith confirmed to ProPublica. Ohio will keep making do with what it has. 

Do you have access to information about prisons and COVID-19 that should be public? Email dara.lind@propublica.org.

This article was published June 18, 2020, by ProPublica (propublica.org); reprinted with permission. Copyright, 2020 Pro Publica Inc.