by Brady Miller
The COVID-19 pandemic has ravaged communities across the country. As of publication, the Center for Disease Control (CDC) has confirmed more than 29 million cases and 530,000 deaths nationwide. In Texas alone, the Department of State Health Services has reported more than 2.3 million confirmed cases and 45,000 confirmed deaths. All 254 counties in Texas have reported at least one confirmed case. Harris County alone has documented more than 350,000 cases.
The COVID-19 pandemic has now been central to all parts of our social and political discourse for more than a year; however, the voice of those incarcerated in our criminal justice system is woefully underrepresented in that national conversation.
The LBJ School of Public Affairs issued a report on November 9, 2020, detailing just how bad the COVID-19 pandemic has hit Texas state prisons. At the time of its publication, at least 204 inmates from state prisons and both state and county jails had died from COVID-19 in Texas correctional facilities. Comparatively, the entire federal prison system has documented 133 COVID-19 inmate deaths. Of the 204 deaths, the Texas Department of Criminal Justice (TDCJ) reported 190 deaths of state prison inmates, while the other 14 deaths were of state or local jail inmates. However, the number of state prison inmate deaths is likely to be far more accurate, as a high level of “churn,” or turnover, in jails decreases the number of cases reported in the state and local jails. The Prison Policy Initiative estimates that while 600,000 inmates go to prison every year, people are arrested and put into jail 10.6 million times each year. Due to the high levels of churn in jails, it is likely that a number of inmates contracted the virus in jail, were released, and subsequently died from the virus outside of jail. The number of those deaths, if they have occurred, will likely never be known. Regardless, of those 204 people who died while incarcerated, 155 inmates were not serving a life sentence, 21 inmates had served at least 90% of their sentence at the time of their death, and 11 inmates hadn’t even been convicted of a crime. Of the 190 state prison deaths, 110 were eligible for parole at the time of their deaths, and another nine were awaiting release after being granted parole.
Cases arguing the legality of the treatment of those in Texas state prisons have begun to make their ways through the court system. Laddy Curtis Valentine and Richard Elvin King are two inmates currently housed in the TDCJ’s Wallace Pack Unit, a geriatric prison in Navasota, Texas, northeast of Houston. Valentine and King are 69 and 73, respectively, and suffer from chronic health conditions that put them at a higher risk of hospitalization or death from COVID-19. The Pack Unit alone makes up 9% of the 190 COVID-19 deaths of those in state prisons. Valentine and King sued the TDCJ in April 2020, alleging that the TDCJ failed to adequately protect them from the dangers of COVID-19. On April 16, 2020, Judge Keith Ellison, District Judge for the Southern District of Texas, issued a preliminary injunction requiring the prison to follow an extensive COVID-19 protocol, including frequent cleaning and increased health education efforts. On June 5, 2020, the Fifth Circuit Court of Appeals vacated the preliminary injunction and remanded the case back to the District Court with the opportunity for a permanent injunction to be imposed, having found that the TDCJ “substantially complied” with the preliminary injunction. Judge Eugene Davis concurred with the judgement, but stated that “holding these elderly, ill inmates jammed together in their dormitories, unable to socially distance as the virus continues to rapidly spread, is nothing short of a human tragedy.”
In the end, not much changed for inmates of the Pack Unit. The Supreme Court ultimately denied Valentine and King’s application to vacate the stay of the injunction imposed by the Fifth Circuit Court of Appeals. Nonetheless, Justice Sonia Sotomayor issued an unusual statement disagreeing with the Fifth Circuit’s initial decision. Sotomayor highlighted in her statement that “despite the prison’s claim of enhanced cleaning measures, its cleaning protocol in practice remained virtually the same.” Justice Sotomayor noted that two-thirds of the inmates in the Pack Unit are 65 years or older, with all inmates living in the same room as another inmate, their beds just 3 or 4 feet apart. The CDC reported that “8 out of 10 COVID-19-related deaths reported in the United States have been among adults aged 65 years and older.” The CDC also suggests that to help prevent the spread of the virus, people remain at least 6 feet apart to practice social distancing.
Social distancing is simply impossible for inmates in the Pack Unit. Inmates like Valentine and King aren’t able to follow the most basic procedures outlined by the CDC. When Judge Ellison issued the preliminary injunction in mid-April, the Pack Unit had just one confirmed case, Leonard Clerkly, who passed away two days before the case was heard. Since then, the TDCJ has reported more than 34,000 cases and more than 250 deaths among inmates across all of its jails and prisons, and due to “scant testing and inconsistent reporting,” it’s likely that both of those in-prison totals are less than the actual numbers.
The Pack Unit is just one of the 102 units in the TDCJ system, all of which have had at least one confirmed case. A lack of preventative measures is not unique to the Pack Unit; four other units in the TDCJ system have as many or more COVID-19 deaths. The disproportionate number of cases in prisons brings about an interesting equal protection argument. Judge Ellison correctly noted in his order granting the preliminary injunction in the Valentine case that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,” quoting Turner v. Safley. The inmates within the Pack Unit are still afforded a number of Constitutional rights and protections, including equal protection under the law, but are Texas state prison inmates actually being afforded equal protection against COVID-19? According to the report from the LBJ School of Public Affairs, Texas state prison inmates were testing positive at rates 490% higher than citizens of the state and 620% higher than the nation as a whole. Additionally, Texas state prison inmates were dying at a 140% higher rate than non-incarcerated Texans.
“It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales.”
 Centers for Disease Control and Prevention, United States COVID-19 Cases and Deaths by State, CDC Cᴏᴠɪᴅ Dᴀᴛᴀ Tʀᴀᴄᴋᴇʀ (last visited March 7, 2021), https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days.
 Texas Health and Human Services, COVID-19 in Texas, Tᴇxᴀs Dᴇᴘᴀʀᴛᴍᴇɴᴛ ᴏғ Sᴛᴀᴛᴇ Hᴇᴀʟᴛʜ Sᴇʀᴠɪᴄᴇs (last visited March 7, 2021), https://txdshs.maps.arcgis.com/apps/opsdashboard/index.html#/ed483ecd702b4298ab01e8b9cafc8b83.
 Michele Deitch et al., COVID and Corrections: A Profile of COVID Deaths in Custody in Texas, Lʏɴᴅᴏɴ B. Jᴏʜɴsᴏɴ Sᴄʜᴏᴏʟ ᴏғ Pᴜʙʟɪᴄ Aғғᴀɪʀs (November 2020), available at https://repositories.lib.utexas.edu/handle/2152/83635.
 See id. at 10.
 See id. at 6.
 “Churn” is the concept that local jails are like a revolving door due to: 1) the high number of jail detainees who haven’t been convicted of a crime and are simply awaiting trial; 2) inmates convicted of a misdemeanor that are serving a maximum of a one year sentence; and 3) detainees being held for federal or state law enforcement agencies. See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Pʀɪsᴏɴ Pᴏʟɪᴄʏ Iɴsᴛɪᴛᴜᴛᴇ (March 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.
 See id.
 Deitch et al., supra note 5, at 7.
 See id. at 18–21.
 Amy Howe, Court denies plea from Texas inmates to restore coronavirus safety measures pending appeal, SCOTUSʙʟᴏɢ (Nov. 16, 2020), https://www.scotusblog.com/2020/11/court-denies-plea-from-texas-inmates-to-restore-coronavirus-safety-measures-pending-appeal/.
 Valentine v. Collier, 4:20-CV-1115 (S.D. Tex. 2020) (order granting preliminary injunction), available at https://clearinghouse.net/chDocs/public/PC-TX-0025-0008.pdf.
 Valentine v. Collier, No. 20-20207 (5th Cir. 2020).
 See id. at 2 (Davis, J., concurring).
 See generally Valentine v. Collier, No. 19A1034 (May 14, 2020) (statement of Justice Sotomayor).
 Id. at 3 (statement of Justice Sotomayor).
 Centers for Disease Control and Prevention, Older Adults: At greater risk of requiring hospitalization or dying if diagnosed with COVID-19, Cᴇɴᴛᴇʀs ғᴏʀ Dɪsᴇᴀsᴇ Cᴏɴᴛʀᴏʟ ᴀɴᴅ Pʀᴇᴠᴇɴᴛɪᴏɴ (Feb. 26, 2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.
 Centers for Disease Control and Prevention, Social Distancing: Keep a Safe Distance to Slow the Spread, Cᴇɴᴛᴇʀs ғᴏʀ Dɪsᴇᴀsᴇ Cᴏɴᴛʀᴏʟ ᴀɴᴅ Pʀᴇᴠᴇɴᴛɪᴏɴ (Nov. 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.
 Valentine v. Collier, No. 20-20207 at 2 (Davis, J., concurring).
 Texas Department of Criminal Justice, Texas Department of Criminal Justice COVID-19 Case Counts, Tᴇxᴀs Dᴇᴘᴀʀᴛᴍᴇɴᴛ ᴏғ Cʀɪᴍɪɴᴀʟ Jᴜsᴛɪᴄᴇ COVID-19 Uᴘᴅᴀᴛᴇs (last visited _______, 2021), https://txdps.maps.arcgis.com/apps/opsdashboard/index.html#/dce4d7da662945178ad5fbf3981fa35c.
 Peter Eisler et al., Special Report: 'Death Sentence' - the hidden coronavirus toll in U.S. jails and prisons, Rᴇᴜᴛᴇʀs (May 18, 2020), https://www.reuters.com/article/us-health-coronavirus-usa-jails-specailr/special-report-death-sentence-the-hidden-coronavirus-toll-in-u-s-jails-and-prisons-idUSKBN22U1V2.
 See supra, note 24.
 Valentine v. Collier, 4:20-CV-1115 at 30 (S.D. Tex. 2020) (order granting preliminary injunction), available at https://clearinghouse.net/chDocs/public/PC-TX-0025-0008.pdf.
 482 U.S. 78, 84 (1987). Turner v. Safley decided that restrictions on inmates’ constitutional rights are subject to rational basis review. For more on the importance of this decision, see e.g.: Caleb Logan, The First Amendment and the Incarcerated, 8 Tᴇx. Uɴᴅᴇʀɢʀᴀᴅᴜᴀᴛᴇ. L. Rᴇᴠ. 121 (2020); Robin Ann Newman, Constitutional Law - Prisoners' Rights - Prison Regulations Constitutionally Valid If Reasonably Related to Legitimate Penological Interests - Turner v. Safley, 107 S. Ct. 2254 (1987), 19 Sᴇᴛᴏɴ Hᴀʟʟ L. Rᴇᴠ. 429 (1989); and Cheryl Dunn Giles, Turner v. Safley and Its Progeny: A Gradual Retreat to the Hands-Off Doctrine, 35 Aʀɪᴢ. L. Rᴇᴠ. 219 (1993).
 Deitch et al., supra note 5, at 11.
 Valentine v. Collier, No. 19A1034 at 6–7 (May 14, 2020) (statement of Justice Sotomayor).