The Louisiana State Penitentiary at Angola, where 11 inmates have tested positive for COVID-19 as of Monday. Credit: U.S. Justice Action Network

Last week, the Louisiana Department of Health issued a memo to the Department of Public Safety and Corrections (DOC) and the Office of Juvenile Justice (OJJ) advising them on how to prevent the spread of the coronavirus in correctional facilities and juvenile detention centers around the state. 

Many of the guidelines in the memo covered the same things that health officials have been telling the public since the start of the outbreak: inmates and staff should practice proper hygiene, wash their hands, avoid sharing personal items and cover coughs and sneezes. It recommended that masks be worn around sick individuals, that only “trained personnel wearing appropriate personal protective equipment (PPE) have contact with individuals who have or may have COVID-19,” and that people who show symptoms of the virus should be isolated.

The memo also advised staff and prisoners at correctional facilities to adhere to the standard six feet social distancing practices recommended by the Centers for Disease Control and Prevention. If that wasn’t possible, the memo suggested that some inmates should be released.

“If said distance cannot be maintained within the current prison population” and if following all of the above referenced protocols does not protect correctional and detention staff, visitors, and inmates, then OPH recommends that correctional and detention centers work with the District Courts, the Public Defender’s Office, and District Attorney’s Office to reduce the size of the jail population of the least non-violent inmates in order to comply with this recommendation.” 

The Department of Health was clear in its memo about what the consequences could be if their recommendations weren’t followed. 

“If the following measures are not taken, said infectious disease could spread within correctional and detention centers which would overwhelm the state’s medical facilities and which would cause further spread to the citizens of the State of Louisiana,” the memo read. 

Then, hours later, the Department of Health rescinded the recommendations.

Shauna Sanford, communications director for Governor John Bel Edwards, said in an email that the memo was not yet finalized and was sent out inadvertently. She did not respond to follow-up questions about when a finalized version would be released, or what changes would be made.

But the memo and its retraction come as the governor and the Department of Corrections are facing mounting criticism over their failure to do more to stop the spread of coronavirus in state prisons and their reluctance to release vulnerable prisoners. Some are concerned that the decision to rescind the memo was a response to pressure from the Department of Corrections and other entities that were reticent about the recommendations — a political calculation that undermined the authority of the Department of Health and could have dire consequences of people in state custody, DOC staff and the community at large.

On Monday afternoon, the DOC had reported on its website that 57 state prisoners have tested positive for the coronavirus in six state facilities. The department has not reported any coronavirus-related inmate deaths. 45 DOC staff members have tested positive at seven facilities, including one who has died. OJJ, which is a division of the Department of Safety and Corrections, reported 27 positive cases among juveniles, with at least one in every one of its four facilities. 14 OJJ staff members, at three facilities, have also tested positive. 

A spokesperson for the DOC did not respond to a request for comment regarding the recommendations or if the department opposed them. A spokesperson for the Office of Juvenile Justice said on Monday afternoon that she was working on providing answers to several questions from The Lens.

Jared Davidson, an attorney with the Southern Poverty Law Center (SPLC) said the recommendations issued on Wednesday by LDH were initially a welcome development, but their quick retraction was troubling. 

“We were really encouraged when we received this guidance from the Department of Health,” Davidson said. “To find out that it was rescinded without further comment begs a lot of questions. It begs the question whether or not DOC was involved in ordering that it get rescinded.” 

Back in March, a coalition of Louisiana groups, including SPLC, issued a letter to the governor encouraging him to come up with a cohesive plan to address the threat of coronavirus in jails and prisons. They specifically asked him to enlist the Department of Health in developing those plans. 

“As Governor, we are asking you to immediately reach out to the Louisiana Department of Health and public health experts to develop plans to address the virus in prisons, jails, juvenile detention facilities, and in the administration of probation and parole,” the letter read. “This is an urgent matter. Having an appropriate, evidence-based plan in place can help prevent an outbreak and minimize its impact if one does occur. Not having one may cost lives.”

But Davidson said that the recommendations issued by LDH on Wednesday may have put the DOC in a hard position because some of the basic mitigation measures to prevent the spread of the virus are difficult to implement in correctional facilities. 

“It may be that some of these recommendations are just not possible in DOC facilities, or in local jails. And we know that many of them are probably unlikely to be able to be effectuated,” Davidson said. “It may be that the DOC is concerned that these recommendations are essentially admitting liability, or that they can’t provide adequate care in these facilities.”

Under Louisiana law, the Department of Health has the authority to “enact provisions regulating the standards of health and decency and building regulations of all prisons, jails, lock-ups, and camps where prisoners are detained or confined.”

Davidson said that the quick retraction of the recommendations pointed to the possibility that the authority of LDH was being undermined by the DOC or other entities. 

“It’s crucial that the provision of care in this circumstance be led by the Department of Health,” he said. 

Mercedes Montagnes, Executive Director of Project of Justice Initiative (PJI), another organization that signed the initial letter to Edwards, said she thought the recommendations specifically did not support the DOC’s plan to house detainees from local jails who have tested positive for coronavirus at state facilities— specifically Camp J of Angola.

“I don’t know why they rescinded it,” Montagnes said. “I am worried that they rescinded it because of political pressure, because they felt like the direction that was provided didn’t support the plan to move people to Camp J, and they will replace that with guidance that does approve the plan to move people to Camp J.” 

Montagnes’ organization, along with the ACLU and SPLC, had previously filed a temporary restraining order in an attempt to halt the transfers of prisoners to Angola, which they argued  “was highly likely to lead to an outbreak of COVID-19 that could literally decimate the elderly and medically vulnerable population” of the prison. That motion was denied by a federal judge. 

“I also worry that during a pandemic we are allowing political pressure to override what is right for public safety and right for public health,” Montagnes said. 

There has been political pressure on the governor around the issue, specifically with regards to potentially releasing state prisoners. On April 1, Louisiana Attorney General Jeff Landry wrote a letter to the governor warning him against releases as a response to the coronavirus. 

“I strongly believe releasing prisoners is not the answer,” Landry wrote, arguing that law enforcement would not be able to monitor prisoners who were released and that “a new crime wave in these perilous times would be disastrous.” In addition, the letter said that sheriff’s offices and the DOC “have collectively put in place protocols that will allow them to deal with any outbreak that may occur in their facilities.”

Edwards and the DOC have not announced any releases of prisoners from state custody due to the threat of coronavirus as of yet, but at a press conference on Thursday he said that they are working on a plan for determining releases for non-violent, non-sex offenders within six months of their release date. The releases would prioritize older prisoners and would need to be approved by five members of a six member panel.

Across the country, states have been taking measures to reduce their prison populations in the wake of coronavirus. In California, about 3,500 prisoners were granted accelerated releases. In Pennsylvania, Governor Tom Wolf has instituted a program that could release between 1,500 and 1,800 prisoners to community corrections centers or home confinement. Similar moves are occuring in Ohio and Kentucky.

On the federal level, United States Attorney General William Barr has mandated that certain prisons maximize the use of home confinement, including the federal prison in Oakdale, Louisiana, as the virus spreads throughout the facility

At a press conference on Friday, Edwards said the situation at Oakdale was of “grave concern” and said it was his hope “that they can get that under control through the actions they have taken, both to try and get as many inmates out of that facility as possible, but all the other things they are going to try and do to isolate, and reverse isolate these individuals before they contract the virus.”

But both Davidson and Montagnes argue that the governor’s own plan for limited releases of state prisoners in Louisiana is coming too late, and without the necessary urgency.

“The best thing they can do to actually protect incarcerated people is release them, and there is clearly opposition to that,” Davidson said.  “Politics is trumping public health, and Governor Edwards should seriously consider this a stain on his legacy.” 

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...