The prison as petri dish

Informed by his 27 years in prison, the political organizer, lawyer and late president of South Africa Nelson Mandela is known to have said: “No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

I considered Mandela’s words on Sunday, March 21, International Day for the Elimination of Racial Discrimination, as I wrote this column from COVID-19 self-isolation. I can see how this nation has leapt to action to protect many of its citizens from harm. I am safer from being able to listen to the advice of our health officials. But what of the so-called lowest among us?

A growing number of tenacious and caring lawyers, advocates, allies and family members of incarcerated loved ones are calling for provincial and territorial governments, as well as the federal government, to extend compassion and common sense to Canada’s incarcerated civilians, a disproportionate number of whom are Indigenous, Black or otherwise racialized, as part of their COVID-19 response.

I have joined this campaign for both humanitarian and personal reasons: my younger brother is currently incarcerated at a federal medium-security correctional institution in Ontario. Admittedly, his well-being is driving my advocacy on this issue as much as my commitment, as a human rights lawyer, to de-policing and decarceration as a method of abolition.

But we all need to realize that if my brother is safe, we will all be much safer too.

Like no other previous event, the COVID-19 outbreak is exposing the human rights crisis that is the contemporary prison. By its very nature, structure and function, the institution as we know it invalidates the supposed universality and ostensible inalienability of human rights as articulated in the Universal Declaration of Human Rights, as well as the Canadian Charter of Rights and Freedoms, along with all other quasi-constitutional federal and provincial human rights legislation.

Incarceration results in the loss and/or severe limitation of basic human rights (to free movement, expression, assembly and association, to privacy, etc.). It also dramatically restricts social, economic and political opportunities, and deprives people of human and humane contact, due to overly risk-averse and stigmatizing policies and social practices reserved specifically for those who have been incarcerated. There’s a reason the American sociologist Joshua Price describes incarceration as a kind of “social death.”

The full weight of that idea hit me in a recent conversation with my friend, the award-winning writer NourbeSe Philip, who casually referred to these “Covidian times.” To quote my brother, “prisons are simply not equipped for a crisis like this.” Inmates are confined two to a small cell, or up to 12 at a time in modest living pods. How does anyone in that situation heed the advice of the world’s leading health care professionals to practice social distancing. It’s simple: you cannot.

Inmates must be escorted at all times, at close distance, by a correctional officer who is leaving and re-entering the prison. Guards must keep no more than two steps from the inmates as they bring them to see visitors or take them into different parts of the prison, to access such things as programming, the kitchen, jobs, health care and even showers. Inmates are required to live, exercise, wash themselves and eat in social settings and gatherings that are now banned, or would result in a fine, in many countries under pandemic states of emergency. As you might expect, there are no compulsory facemasks in jail, even for inmates showing symptoms of COVID-19.

If we take seriously the analogy of COVID-19 as a war, then our prisons are powder kegs being carried and cared for by chain-smoking soldiers. Tens of thousands of lives are at risk, and the fight against this pandemic critically undermined, if we don’t move more aggressively to apply COVID-19 emergency containment measures to Canada’s federal and provincial prisons.

That means making sure bail court judges are only denying bail to the most extremely and demonstrably high-risk accused. It means allowing offenders serving intermittent sentences to serve the rest of their time in the community. It means quickly releasing low-risk accused and offenders.

And it means providing cellphones (if without data) to inmates to avoid the few available pay phones becoming COVID-19 transmission points—and so inmates can better keep in touch with their lawyers and the family members and loved ones that often play a pivotal role in their rehabilitation.

Though some of these measures have been adopted or are being explored in Ontario, they’re not being pursued nearly as fast the virus is spreading. The urgency is not theoretical: Toronto recently confirmed that a provincial correctional officer—notably at an institution with considerable overrepresentation of Black and Indigenous inmates—had contracted the infection. This accentuates the point that COVID-19 is not a colour-blind crisis, but a litmus test of Canadians’ commitment to racial equity as a national norm.

In sum, if immediate and dramatic action to safely depopulate Canada’s prisons isn’t taken up as part of our governments’ containment measures, our efforts to address the outbreak won’t be judged by who is left, but by who was left behind.


Anthony N. Morgan is a Toronto-based human rights lawyer, policy consultant and community educator. His column, Colour-coded Justice, appears regularly in the CCPA Monitor.