Andrea Circle Bear was a pregnant 30 year-old Native American, a mother of five and a federal prisoner, with a 26-month sentence, on a minor, nonviolent drug charge. She died in April, three weeks after having an emergency C-section while on a ventilator—a victim of the coronavirus and an inhumane justice system that sent, by plane, a woman who was eight-and-a-half months pregnant, to a distant, crowded federal prison. Her family never heard from the United States Federal Bureau of Prisons concerning either mother or child, typical of the inhumanity and cruelty of a bureaucracy, without accountability.
Andrea Circle Bear’s death was both predictable and preventable. Why would such a woman be sent to prison in the first place? Especially now, with COVID-19 turning prisons and jails into death traps? Because Andrea Circle Bear, like most people in jails and prisons, had been de-humanized and thus become disposable. In fact, the prison-industrial complex is designed to do just that. It constructs the people who are held in its cages as “other” in order that people do not question the inequalities underpinning carceral states.
Structural racism ensures that people in prisons, because of their intersecting class, race, religious or national origins, are presented as not deserving. Mass incarceration is fundamental in societies that strive to dispossess, disappear, and sometimes kill marginalized communities such as the United States, Israel, and Canada. Political orientation also shapes the differentially valued lives of incarcerated people, as those who are imprisoned on the basis of their political activity, involvement, and organizing face a form of dehumanization that constructs them primarily as threats to the state. These include activists belonging to Black Power, Indigenous rights, Palestinian liberation, anti-imperialist, and other movements historically targeted by the carceral state.
Organizers, community leaders, medical experts, and family members of people who are incarcerated have been raising their voices to little avail, even as abolitionist demands have risen in the wake of the George Floyd uprising, the massive nationwide protests, and the demands to defund and abolish the police. At the same time, Palestinians have been struggling for the freedom of Palestinian prisoners in Israeli jails, not only because of the humanitarian crisis but as a central political demand necessary for liberation, alongside the end of the occupation, the dismantling of settlements, and the right to return for Palestinian refugees.
It is virtually impossible, under the prevailing conditions of confinement in the carceral states we are analyzing, for correctional authorities to adhere to the guidelines issued by the World Health Organization, the Office of the United Nations (UN) High Commissioner for Human Rights (OHCHR), and UN human rights experts and advocates, on the need to prevent the spread of COVID-19 in prisons and other places of incarceration around the world.
By their very design, prisons and jails do not allow for acceptable social distancing, and the common carceral policies of double and triple celling and large dormitories place huge sectors of the incarcerated population at immediate and high risk. Prisons and other places of incarceration are also plagued by chronically poor health care. Despite the recent provision of masks to staff and some incarcerated people, adequate testing, tracking, treatment, humane isolation (rather than solitary confinement), sanitary conditions, and necessary protective equipment, are all practically nonexistent. These are death traps waiting to happen.
People in prisons and other places of detention are also especially vulnerable to human rights violations. It is for this reason that the World Health Organization (WHO) reiterated important human rights principles to be respected in the response to COVID-19 in prisons and detention centres. Importantly, they state that “[e]nhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”
The UN and human rights advocates have specifically called for prisons to reduce their populations, by releasing those who are “especially vulnerable to the disease, such as those who are elderly or who have health issues” as well as low-risk offenders, reviewing all cases of pre-trial detention, and extending the use of bail for all but the most serious cases. They have also called for the release of political prisoners, with UN High Commissioner Michelle Bachelet urging, “Now, more than ever, governments should release every person detained without sufficient legal basis, including political prisoners and others detained simply for expressing critical or dissenting views.” Few prisons are responding to these calls, and political prisoners are generally being passed over for release.
The COVID-19 pandemic has shown that abolitionist demands are the most sensible and practical—indeed, the only—steps to ensure the health of incarcerated people, as well as the communities they and correctional staff come from. Consideration of non-custodial measures at all stages of the criminal legal process, in “normal times” has been consistently urged by both the UN, and popular organizations worldwide. Mass release of incarcerated people amidst the pandemic is necessary to avoid foreseeable catastrophe.
The US has the highest incarceration rate in the world, and while the country represents about five percent of the world’s population, it has around 25 percent of the world’s prisoners—over 2.3 million people, 60 percent of whom are African-American or Latinx. This is the result of the inherent punitiveness of the white supremacist systems of criminalization and oppression in the US. It makes the prison pandemic not only a public health issue, but also a racial justice issue.
In Canada, 30 percent of incarcerated people are Indigenous, with that percentage reaching 42 percent for incarcerated women. At the same time, Indigenous people make up only five percent of the population of Canada. After years of land theft, resource extraction on unceded lands, residential schools and other genocidal policies targeting Indigenous communities, incarceration looms large as a continuing threat to Indigenous life, while the Canadian prison system largely attempts to disclaim responsibility.
In the United States, the prison system is divided into federal and state prisons and local city and county jails, making comprehensive, up-to-date statistics just about impossible to obtain. We do know that by mid-May, more than 80 percent of the people caged at one prison in Marion, Ohio, where there was mass testing of about 2,000 people, were infected with the coronavirus. 13 had died. This crisis might have been averted if the governor had been willing to free people en masse, commute prison sentences, or grant reprieves or clemency, when the risk to the caged population became clear.
Prisoner advocates, families and medical experts had demanded that the governor release 20,000 state prisoners, about 40 percent of those in custody, including those whose sentences are almost complete, those incarcerated for “nonviolent” offenses, the elderly, and people with health problems that make them especially vulnerable to infection. Governor DeWine commuted only seven sentences and created an opaque process through which the prison population may have been trimmed by roughly 1,300, with about 200 more recommended for early release. Meanwhile, tens of thousands of people remained crammed into the state’s prisons, fearing for their lives.
Despite the death sentence that remaining behind bars could mean for thousands of people, most prison authorities have consistently resisted any form of mass release, even with stringent electronic monitoring. While some jails have made significant efforts to reduce their populations, as of mid-May, only eight states, all with relatively small populations, had released more than 10 percent of the people in their prisons. On the federal level, despite US Attorney-General Barr’s order to “immediately maximize” releases, the Federal Bureau of Prisons had only set three percent of their population free by mid-May.
As another settler colony, Israel similarly uses mass incarceration as a means of dehumanizing and disappearing a colonized population in the midst of a deadly pandemic. In many ways, Israel’s policies toward the Palestinian population bear sharp similarities and may draw inspiration from those pursued by Canada against Indigenous peoples.
Nearly 30 years after the Oslo Accords, Israel’s settler colonial policies continue to treat Palestinians as the same, unwanted, colonized group—whether they are citizens of Israel, Palestinians living in the Occupied Palestinian Territories, or expelled refugees. Hundreds of Israeli prisoners have been released in efforts to slow the spread of COVID-19, however no Palestinians have experienced similar humanity. Israel’s new unity government, involving Benjamin Netanyahu’s Likud and the Blue and White of Benny Gantz, was nominally conjoined in order to deal with the social crisis produced by the pandemic. However, the most important point of unity for this government for those concerned with human rights was its announced platform of unlawfully annexing the Jordan Valley, one of the most fertile agricultural areas in Palestine, as well as Israel’s illegal colonial settlements throughout the occupied Palestinian West Bank.
For Palestinians, this has meant not only the threat of increased land theft, home demolitions, and encroaching apartheid, but even more arrests. In the pre-dawn hours on July 1, before protests inside Palestine and around the world as part of a “Day of Rage” against the annexation plan, student activists and organizers for political prisoners’ freedom were among those seized. The ongoing targeting of the Palestinian population for imprisonment includes Palestinian children, who are routinely arrested in violent nighttime raids on family homes and subjected to torturous, cruel, inhuman, or degrading interrogations.
Despite the pandemic, 194 Palestinian children were incarcerated in Israeli prisons at the end of March, an increase of six percent from January. Over 60 percent of these children are being held pre-trial, and are not even serving sentences. Israel is the only country that systematically imprisons children in a military system, and these children—some as young as 12—are frequently abused and tortured.
During a global pandemic, where social distancing is impossible in prisons, one might expect that Israeli officials would, at the very least, free those being held without charge and the most vulnerable: the elderly, the ill, and children. Instead, they have created an unconscionable nightmare that reflects the ongoing criminalization, dehumanization, and targeting of the Palestinian population, from young to old. At the same time that child prisoners have been denied release, so too have elders. Israeli officials have rejected medical and humanitarian requests to free Palestinian prisoners over 80 years old.
New measures have increasingly isolated incarcerated Palestinians. Family visits have been banned, and “access to lawyers restricted.” Military court trials have been postponed, so Palestinians are held indefinitely without being charged or even brought to court. Of the 5,000 Palestinian prisoners in Israeli prisons, 430 are under administrative detention, “a procedure under which a person is deprived of their freedom without charge or trial.” What this has meant is that the policies nominally described as protective amid the coronavirus pandemic have left Palestinians even more vulnerable to the Israeli state’s repressive practices.
Incarceration of Palestinians within Israel “violates international humanitarian law, which forbids an occupying power from transferring protected persons outside of the occupied territory.” Because most Palestinians are being held in detention centers or prisons outside of the Occupied Palestinian Territories, this makes any family visitations that are even allowed under the circumstances extremely difficult and costly, if not impossible.
This crisis is not limited to occupied Palestine nor to the settler colonial powers of North America. For example, in Indian-occupied Kashmir, the Public Safety Act—deemed “lawless” by Amnesty International—has seen detained people moved far from their family and denied effective due process.
The George Floyd uprising, demonstrations against annexation, and the global movement that has arisen under the banner of Black Lives are not simply protests against racism, but demands for a serious reckoning with the destructive global forces of colonialism and imperialism. This project of liberation also involves confronting the very forces that keep imperial and colonial power intact, domestically and inside the United States, such as policing, jails, and prisons.
Incarceration is a manifestation and continuation of chronic and interwoven structures of oppression. It is used to enforce racial capitalism, apartheid and colonialism, from the US to Canada to occupied Palestine. This system is not broken because it tolerates the death traps prisons and jails have become. It is functioning exactly as designed, and will not provide justice in response to this tragedy. True justice can only begin with abolishing the prison-industrial complex at large that is fueled and upheld by—and operates to uphold—white supremacy, colonialism and racism, and bolstering the structures that meet communities’ needs to flourish.
Azadeh Shahshahani is Legal & Advocacy Director at Project South and a past president of the National Lawyers Guild (U.S.). She tweets @ashahshahani. Charlotte Kates, based in Vancouver, is the International Coordinator of Samidoun Palestinian Prisoner Solidarity Network and the coordinator of the International Committee of the National Lawyers Guild (U.S.). Follow Charlotte on Twitter @charlottekates.