The COVID virus has devastated American jails and prisons. By the end of 2020, one in every five inmates in the country had tested positive for the deadly virus—a rate four times higher than the general population. That translated into more 372,500 infections and nearly 2,400 deaths as of February 2, 2021, according to the Marshall Project


As of January 28, 2021, according to the Texas Department Criminal Justice, nearly 33,000 inmates and roughly 10,500 staff members had tested positive for the virus. Of those, 187 inmates and 37 staff members died from their infections. Add to the health crisis caused by the pandemic, the recent arctic storm and the resulting loss of power has left incarcerated people freezing, without water, in harsh, inhumane conditions. People have been left without heat, additional blankets and forced to survive in close quarters surrounded by urine and feces because plumbing is not functioning.  Drinking water has been in dangerously low supply.


Texas Inmates Imprisoned Face High COVID Infection Rates


The Marshall Project reports that Texas trails only California and the entire federal prison system for the highest imprisoned infections rate.


Texas’ elected officials have failed to keep the public informed about COVID infections/deaths in the county jails. It took the University of Texas in Austin (“UT Report“) to analyze the impact the virus has had on the state’s imprisoned populations. This report found that 80 percent of the jail deaths were people who had not been convicted of any crime.


The Associated Press reported on January 16, 2021 that a local federal judge Lee Rosenthal “asked officials to review how more than 1,900 inmates in Texas’ largest county jail {Harris County} could be released to relieve overcrowding at a facility where officials worry about a potential COVID-19 outbreak.”


Court of Appeals Blocks Release of Inmates During Pandemic


The Fifth Circuit Court of Appeals on February 2, 2021 took the “Great Writ,” as the writ of habeas corpus has been referred to through the ages of American law, off the table as a release vehicle in COVID cases.


The court’s decision, Rice v. Gonzales, concluded that “the Great Writ does not, in this circuit, afforded release for prisoners held in state custody due to adverse conditions of confinement.”


Skyler Thomas Rice is an accused offender housed in the Harris County Jail. Due to serious medical conditions (including asthma and hypertension) that place him at high risk of contracting the virus, he filed a petition seeking release from the jail either through a federal writ of habeas corpus (28 U.S.C. § 2241) or the federal civil rights statute (42 U.S.C. § 1983).


Treating the petition as one seeking federal habeas release, the federal district court concluded Rice was not could not avail himself to the writ. The Fifth Circuit explained why the district court was correct:


“In Pierre v. United States, this court held that, ‘[s]imply stated, habeas is not available to review questions unrelated to the cause of detention. Its sole function is to grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose’… Similarly, that Rice might more likely be exposed to COVID-19 during confinement, and that he may have certain common underlying health conditions, taken together do not impugn the underlying legal basis for the fact or duration of his confinement. Rice seeks an extension of federal habeas corpus law that this court is not authorized to grant.”


COVID Throttles Harris County Jail 


Harris County Sheriff Ed Gonzales has informed Judge Rosenthal that his jail now houses more than 9,000 inmates making it virtually impossible to quarantine inmates who test positive for the virus.


In response, Judge Rosenthal, who is presiding over a lawsuit challenging bail practices in the county, expressed concern during a virtual hearing last month that conditions at the jail could create risks to “the health of inmates who are awaiting trial, along with jail employees and their families.”


The vast majority of those inmates awaiting trial, or some other disposition of their cases in the court system, pose no real threat to the community should they be released. But Gov. Abbott and his cohort, Attorney General Ken Paxton, do not see it that way. They view all imprisoned people through the same lens as someone accused of capital murder and have a vested “tough on crime” political interest in keeping the wealth-based bail system in place.


The recent Fifth Circuit decision now puts Harris County between the proverbial rock and a hard place in terms of fashioning any release plan. Local officials must devise a plan that will satisfy the judge while preventing the governor and attorney general from intervening. All this while addressing an increasingly sick population and the cost associated with a pandemic in a jail.


The federal appeals court has effectively shut down federal legal remedies for incarcerated people seeking emergency release due to COVID and related high-risk co-morbidities and complications. Failure to release non-violent individuals from needless incarceration means there will most likely be another significant COVID crisis in the Harris County Jail. This situation doesn’t bode well for the coming months, especially once the virus’ new variants worm their way into the facility.