Bloomberg Law
April 15, 2020, 8:01 AM

INSIGHT: Five Ways Attorneys Are Protecting Human Rights of the Incarcerated

Masha Lisitsyna
Masha Lisitsyna
Open Society Justice Initiative
Natasha Arnpriester
Natasha Arnpriester
Open Society Justice Initiative

While millions of New Yorkers wait out the spread of coronavirus inside their homes, more than 7,200 of their neighbors have no choice on how to protect their health and safety. Social distancing is not an option for the men and women, disproportionately Black and Latinx, incarcerated in New York City’s prisons and jails.

Covid-19 is spreading at an alarming rate in New York City’s dense jails—in addition to the city being a global coronavirus hotspot, reported infection rates within its jails are more than 44 times higher than the U.S. at large

The overpopulation, poor sanitation, and inadequate healthcare that characterize detention centers in New York are just a few of the conditions that spell out a death sentence for some of the 10 million people currently incarcerated worldwide during the pandemic. The spread of the coronavirus in detention not only imperils the lives of prisoners and guards, but, when retransmitted by workers and released prisoners, the health and wellbeing of everyone.

In this way, the pandemic has thrown into stark relief the heavy cost societies pay for governments’ over-dependence on incarceration. It also echoes what criminal justice reform activists have been saying all along: there must be urgent and systemic alternatives to detention and changes to the laws that place people there.

In an immediate response, lawyers and advocates around the world are taking action to protect the health and safety of incarcerated individuals and those facing trial through the courts—and some of their legal strategies are saving lives.

As litigation in these examples continue to progress—some successful, some thwarted—case lawyers continue to exercise legal avenues to protect those incarcerated and at-risk.

Filing Writs of Habeas Corpus

A writ of habeas corpus, common to many national judicial systems and incorporated in international law, is used to bring a detainee before the court to determine if the person’s detention is lawful. In New York City, lawyers secured the immediate release of over 100 individuals held at the New York prison complex at Rikers Island pursuant to a writ of habeas corpus arguing that continued detention “constitutes deliberate indifference to the risk of serious medical harm in violation of … due process.”

Public defender offices across Brazil filed writs of habeas corpus requesting release or alternative custody measures for those detained. In São Paulo, defenders were granted an order of release and house arrest for some at-risk, including older individuals. Admissions were also halted to a prison in the municipality of Tremembé due to dire conditions conducive to the spread of coronavirus.

In Rio, the public defender’s office secured an order requiring judges to review, within 10 days, the cases of individuals over 60 who are arrested or held in pre-trial detention and place them under house arrest. Although the order is now on appeal, some were successfully released. Based on a writ submitted by the public defender’s office in Espírito Santo, securing the release of all individuals in detention due to non-payment of bail, the federal public defender’s office obtained an extension of the order to apply across Brazil writ large.

Similar petitions requesting the release of those at risk have been filed in Mendoza, Argentina, by Association XUMEK, resulting in a court order requiring the government to review all cases of at-risk prisoners who could be placed under house arrest.

Contesting Groundless Detention

In Texas, lawyers filed a class action motion seeking the immediate release of pretrial detainees unable to attain release due to the cost of bail. Arguing that “wealth-based detention” violates equal protection and due process, a judge ordered the parties to generate a list of 4,000 incarcerated individuals for release determinations.

In a motion on similar grounds, lawyers in Missouri requested the elimination of “unnecessary detention that exacerbates the grave danger the virus poses to the public.”

Litigating Rights Violations Caused by Covid-19 Restrictions

Lawyers in Australia have filed cases based on rights violations caused by the enforcement of policies to contain Covid-19. For instance, following visitation restrictions, lawyers successfully secured bail for a woman citing “extraordinary circumstances” given that “contact with family is an important element in the life of a [prisoner].”

Similarly, a court granted bail to another woman while acknowledging that delays to her hearing as a result of Covid-19 would likely result in pre-trial detention longer than one that would normally be served for a guilty verdict.

Using Rights-Based Arguments to Invoke State Duties vis-à-vis Detainees

Lawyers in India and Pakistan are using public interest litigation, which uses laws and the constitution to remedy fundamental rights violations, to allow unaffected parties to serve as representatives of those unable to approach the court themselves. Lawyers have requested court orders to ensure that states implement prevention measures immediately, including prisoner release and sanitation exercises in prisons, arguing that inaction will result in a “large-scale loss of lives.”

In France, lawyers filed an administrative complaint to the Council of State requesting that it order the government to take immediate measures, including reducing the prison population and improving detention conditions, to stop violations of detainees’ fundamental rights exacerbated by the coronavirus.

In Washington, lawyers filed a petition for a writ of mandamus, a request that the court order the government to fulfill their official duties, arguing the governor and corrections secretary violated the constitution by not allowing for social distancing, putting the health of incarcerated persons in jeopardy. The lawsuit seeks the release of individuals who are over 50, have serious health concerns, or are scheduled for release in the next 18 months.

Likewise, lawyers in California submitted a writ of mandamus requesting an order to cap the prison population at a level permitting social distancing and to release prisoners at high risk from Covid-19.

Filing Criminal Complaints Against Governments

When preventative litigation fails, another avenue includes filing criminal complaints against governments. In France, a complaint was filed against the Prime Minister and Minister of Justice on behalf of 30 detainees which cited a “failure to assist a person in danger.”

The urgently needed actions taken by lawyers during this pandemic may pave the way for a drastically different model of incarceration in the future. But it should not have taken a devastating and cataclysmic health crisis for governments to take seriously what prison reform advocates have been saying all along—that our over-reliance and misuse of detention runs contrary to a just and thriving society.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Masha Lisitsyna is a senior managing legal officer at the Criminal Justice Division of the Open Society Justice Initiative. She has 25 years of experience in the field of human rights protection and has focused in the last decade on accountability for torture in Eurasia, South and Southeast Asia, and Latin America.

Natasha Arnpriester is an advocacy officer and lawyer with the Open Society Justice Initiative, where she focuses on the use of legal advocacy and strategic litigation to address issues related to criminal justice.