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Lost Opportunity, Lost Lives

During the pandemic, prison officials could have prevented sickness and death by releasing those who were most vulnerable to coronavirus and least likely to reoffend — older incarcerated people.

At first, Anthony Eaton ignored the moaning. He was twisting his budding dreadlocks in the bathroom of 1000 pod, a unit at the Deerfield Correctional Center in Capron, Virginia, when he heard a noise coming from a shower stall. In prison, Eaton said, you don’t investigate such things.

This article was published in partnership with Mother Jones.

“It was a strange moaning,” he said. “I didn't want to look back there. But after it went on for like, three, four, five minutes, I just said, ‘Let me look.’”

Deerfield is a geriatric facility, housing mainly men over 55, and the pod was a red zone at that time, being used to quarantine about 100 men who had recently tested positive for COVID-19. It was around 9 p.m. on Sept. 27, 2020, and many of the men were in the dayroom that adjoins the bathroom, watching the Green Bay Packers play the New Orleans Saints.

When Eaton walked around to the showers, he found 67-year-old Askia Asmar face down on the floor. His breathing was slow and labored, and there was a puddle of blood beside his face. Eaton ran to the officer on duty, who called medical staff. But when the doctor arrived, he stood outside the pod, refusing to come in, according to several men who were in the pod that night. Many of them pleaded with the doctor through windows and plexiglass slats in the door that Asmar needed help.

“People were yelling at him and fussing at him, but he never came in,” said Eaton, 55.

Zonnie Simmons, 56, was also in the pod that night, and said he was enraged by the doctor’s refusal to help: “He never even tried to attempt to come in and help this man that was dying on the floor.”

Eventually, prison staff arrived with a nurse, and they and other men in the pod loaded Asmar onto a stretcher. The men were later told he’d died from COVID-19. Asmar had lung and liver cancer, diabetes and hepatitis C. He had about 10 months left until his mandatory release date but could have been released even earlier, as he had a parole hearing scheduled for December 2020. He’d applied for the Inmate Early Release Plan in June 2020, under which the Virginia Department of Corrections (VDOC) considers early release for those who are close to their release date and at risk of serious complications from the coronavirus. Asmar’s request was denied.

Asmar was one of 19 men to die at Deerfield during an outbreak in which 837 of the 925 men incarcerated at the facility were infected. Several men at the facility allege that the number of COVID-19 deaths the VDOC has documented is higher than that.

In an affidavit given to the ACLU 11 days before his death, Asmar said: “Two people from my building died in September and two in the building I was moved to on September 11 also died; prison staff is blaming their deaths on other medical conditions, but I am sure it is COVID.”

VDOC Director of Communications Lisa Kinney did not answer any questions about Asmar or the claims made in this story by Asmar and the other men.

Eaton said he was so tired of all the death that he didn’t return to the bathroom after he alerted the officer that Asmar had collapsed.

“I didn’t want to see him,” Eaton said. “There was a guy who died like a month before that. And I found him. I just ain’t want to see none of it no more.”

Initial reports about the coronavirus noted that older adults and those with comorbidities were most at risk of dying or having serious complications from the virus. Those in correctional facilities, where it is generally impossible to socially distance, were especially at risk. According to the Prison Policy Initiative, even 10 months into the pandemic, prison systems in 41 states were still operating at 75% or more of their capacity, with at least nine operating at over 100% capacity.

On Feb. 29, 2020, James Dillingham III, who is also incarcerated at Deerfield and was in the same pod as Asmar, wrote a letter to Virginia Gov. Ralph Northam with concerns: “The CDC has already said that places like prisons are high-risk areas where the virus can spread rapidly and would be quite severe. A geriatric facility where many are old or suffer with compromised health issues could have catastrophic consequences.” Dillingham says he never received a response.

There are 148,815 people over the age of 55 in state prisons, according to the most recent data from the Bureau of Justice Statistics. The pandemic provided an opportunity to do what advocates, politicians — both Democrats and Republicans — and others have long recommended: Significantly reduce the prison population, in this case by releasing older adults and others most medically vulnerable to protect them from the virus.

Several governors said they would do just that. In April 2020, the Inmate Early Release Plan — Gov. Northam’s proposal to release people in prison for anything other than a Class 1 felony or sexually violent offense, with one year or less remaining in their sentences — was approved. New York Gov. Andrew Cuomo also announced in April 2020 that the state would consider releasing people over 55 who had 90 days or less remaining on their sentences and whose convictions were not violent felonies or sex offenses.

But lawyers and advocates say few older people have been released early due to the pandemic. The Marshall Project filed Freedom of Information Act requests to get data from several states showing how many people over the age of 55 had been released early due to the pandemic. The New York Department of Corrections and Community Supervision (DOCCS) did not provide a breakdown for the number of older people who had been released early, but a spokesperson said that to date it has released 3,093 individuals who were serving sentences for non-violent, non-sex offenses and were within 90 days of their release date. From April 20 to May 14 of last year, 177 people over age 55 who met that criteria were released. The Virginia Department of Corrections has released 1,112 of the 3,155 people it considered for early release. VDOC did not provide data broken down by age.

The stipulation that only those incarcerated for nonviolent offenses should be eligible for early release excludes many older people, who have often spent several decades in prison precisely because of the long sentences they received for committing violent crimes. Between 1993 and 2013, more than 65% of the people in state prisons who were 55 or older were serving time for violent offenses.

But states are not even releasing those serving sentences for nonviolent crimes, according to experts. Asmar was convicted of a nonviolent crime, had terminal cancer and less than a year on his sentence, which would have made him a model candidate for early release, said Eden Heilman, Legal Director of the ACLU of Virginia. But in Virginia, the VDOC has the discretion to decide who qualifies for early release by using a recidivism risk assessment tool called COMPAS — the Correctional Offender Management Profiling for Alternative Sanctions. Studies have found that COMPAS is not a reliable predictor of recidivism risk, and produces racially-biased results. And studies show that older people are less likely to reoffend.

Heilman said that someone who is incarcerated for a nonviolent offense like forgery or selling drugs could still be considered ineligible for release if COMPAS shows they’re likely to commit those crimes again if they’re released, even if they’ve been in prison for decades.

The issue, says Jose Saldana, director of Release Aging People in Prison (RAPP), is that the system focuses on punishment and fear based on what people might have done decades earlier rather than consideration that people can change.

“Elders are needlessly dying in prison, when they could be safely returned back to their families and home communities,” says Saldana, who himself served 38 years in New York State prisons. “The only thing that stops a 75-year-old man who has been imprisoned for almost five decades from being released is vengeance. That’s the only thing. It's not justice; it's vengeance.”

Dillingham, 52, followed his initial warning with over 20 additional letters to the governor and other officials. A former Air Force Sergeant, he’s used to getting things done. On March 15, 2020, he sent a list of recommendations about how Deerfield should prepare for the inevitable, including commuting remaining sentences so that the facility could isolate sick individuals.

Dillingham also began to help several of the older men, including Asmar, with applications for early release. These were men in the reentry pod, where Dillingham worked, meaning they were 12-15 months from their release dates. Dillingham, who has been incarcerated since 2010 on rape and other charges, is ineligible for the Inmate Early Release Plan, but submitted a request for conditional release due to the pandemic on May 20, 2020, as an addendum to a clemency petition he filed in 2014. He has been fighting for his release for over a decade, saying he is innocent of the crimes with which he was charged.

In mid-August 2020, Dillingham, who has several illnesses, including one which causes a drop in blood pressure and loss of consciousness, got COVID-19. It started with a fever, and while he and several other men in the pod who had similar symptoms told prison staff they likely had the virus, Dillingham said staff refused to test them for COVID-19. On September 2, Dillingham started having chest pains and shortness of breath. He collapsed and was taken to Southampton Memorial Hospital.

When Dillingham returned to Deerfield a few days later, he says he was quarantined for eight days in a pod that had not previously been in use and was in a state of disrepair. An endless stream of ants was crawling in through the electrical socket and onto his bed. Dillingham was then released to 1000 pod, where he learned that two of the six men he’d been trying to help with early release applications, William Offutt and James Cole, had died from COVID-19. Asmar died about two weeks later.

Older people are the fastest-growing demographic in prison. According to the Bureau of Justice Statistics, the number of incarcerated people age 55 or older sentenced to more than one year in state prison increased 400% between 1993 and 2013, “from 26,300 (3% of the total state prison population) in 1993 to 131,500 (10% of the total population) in 2013.” Many older people are serving decades in prison due to mandatory minimum sentences and an increase in life sentences given during the “tough on crime” era that began with the War on Drugs in the 1980s.

Edward MacKenzie, 65, is incarcerated at the Adirondack Correctional Facility, a geriatric facility in Ray Brook, New York. He is currently serving a 28-year-to-life sentence for possession of a controlled substance, robbery and unauthorized use of a vehicle. MacKenzie said he was given such a severe sentence because this was his third felony conviction. One of his prior felonies was attempted possession of half a gram of cocaine.

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MacKenzie went before the parole board in March 2020 and was denied parole due to his past criminal history and the seriousness of his crime. “Two things that are never going to change,” MacKenzie said. He says he has changed in his almost 30 years in prison and “would not even spit on the ground” if he were released.

“[The parole board] said, ‘Because of the seriousness of your crime … we feel you cannot go out there and live and remain without violating the law,’” said MacKenzie. “When do you think enough is enough? I didn’t kill nobody, I didn’t hurt nobody.”

In 15 states, incarcerated people in prison are considered “older” starting at age 50, according to the Vera Institute. A National Institute of Corrections report recommended that correctional agencies nationwide adopt age 50 “as the chronological starting point to define ‘older offenders.’” While 50 might seem young, people age differently in prison, and are more likely to develop chronic medical conditions at younger ages than their counterparts in the free world, due in part to inadequate health care.

Corrections officials have argued that because these older people often do not have family support, it would be harmful to release them into communities that are under-resourced and underserved, especially during the pandemic, says Dylan Hayre, a former Campaign Strategist at the ACLU and currently a Director of Criminal Justice at Arnold Ventures. (Disclaimer: Arnold Ventures provides funding to The Marshall Project.)

“‘You want us to release hundreds of thousands of people into broken systems, overburdened hospitals, this and that?’” said Hayre. “And our response is basically, yes, how to do that is the question you should have been asking and answering for the last five decades. But the fact that you didn't doesn't preclude you now from taking action or having responsibility today.”

Askia Asmar had planned to live with his niece, a nurse, after he was released. He’d never been convicted of a violent crime, but had been in and out of prison for selling drugs, according to his sister, Maudie Howell.

Asmar and Howell were raised by a single mother on the east end of Richmond, Virginia. The two were inseparable as children. Asmar, who was two years older than Howell, had to do her hair before school each morning, as their mother left early for work.

“When he died, it was just like they took a part of my body, because we were so close,” Howell said.

Asmar initially didn’t tell Howell that he’d tested positive for COVID-19. She’d had open-heart surgery a few months prior, and he didn’t want to worry her. When he eventually did tell Howell, he told her his symptoms were mild, though in his affidavit, Asmar said he was experiencing sweats, diarrhea and body aches.

Howell’s last conversation with her brother was four days before he died, and she found it odd that he spent so much of the conversation reminiscing about their childhood. In retrospect, she feels he was trying to seal memories in her mind.

“Like he was like, ‘You know, you remember I used to beat up some of your boyfriends?’ I said, ‘You ran a lot of them away!’” said Howell.

Asmar had told men in his pod he was afraid he was dying, but he told Howell he would call her on Sunday — the day he died.

Howell, who herself died on March 3, 2021, a few weeks after completing interviews for this story, was angry that the prison denied Asmar’s petition for early release, as he met all VDOC’s criteria.

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“I mean, he was 67 years old. What was he gonna come out and do?” said Howell. “He had liver cancer, lung cancer, high blood pressure, sugar, hepatitis. He had a lot going on. What can he do?”

The ACLU of Virginia and Charlottesville attorney Elliott Harding filed a federal class-action lawsuit in April 2020, alleging that Virginia was violating the U.S. Constitution by failing to release people from overcrowded facilities during the pandemic. The ACLU has cited several instances of noncompliance since a settlement was reached in May 2020, including one in September 2020 that called out Deerfield in particular and included Asmar’s affidavit.

“The governor also has the power to release people through conditional pardons, but he seems to be relying on VDOC to reduce the prison population,” said Heilman at the time. “As a result, Virginia has the absolute lowest release rate in the country during this pandemic.”

In January 2021, The Legal Aid Society and Relman Colfax filed a similar lawsuit on behalf of RAPP and about 100 men at the Adirondack Correctional Facility.

“By design, incarcerated people transferred to Adirondack are old, infirm, and unthreatening,” the complaint reads. “These are precisely the people that DOCCS should prioritize releasing in light of the COVID-19 crisis.”

The Adirondack prison had previously housed juveniles who were transferred from DOCCS custody to the Office of Children and Family Services, enacting the governor’s original Raise the Age proposal, according to a DOCCS spokesperson. In June 2020, DOCCS moved about 90 men over the age of 60 there. Several men said there was no doctor at the facility at the time they were transferred, and they were afraid they were going to die. DOCCS said that the physician at Adirondack retired before the men were transferred to the prison, and it’s a position the department is actively seeking to fill.

MacKenzie filed several grievances about the poor medical care, outlining how the prison was violating its own COVID-19 protocols. In August 2020, he wrote to Adirondack superintendent Jeffrey Tedford saying that after someone in his building tested positive for COVID-19, he and the other men were only quarantined for two to three hours and were not tested afterward to see if they’d contracted the virus.

Michael Heron, 61, said that he and 12 other men who were moved to Adirondack in June 2020 from Sing Sing were told they were moved to protect them from the virus, due to their age and the fact that they had underlying medical conditions. But Heron said that at least one man was brought to Adirondack with COVID-19, and that they were all moved there just to keep the facility open and the staff who live in the surrounding towns employed.

“The state assembly representatives for the area and region beseeched the governor's office with the position that instead of releasing the aged and infirmed prisoners, they should instead send the prisoners to Adirondack, which would reopen the prison, foster employment in the area, and quiet those who were advocating for our release,” he wrote.

DOCCS said that one person was transferred to Adirondack with a pending COVID-19 test, and that once results showed he had the virus, a day after his arrival, he was immediately isolated. A spokesperson for Gov. Cuomo said men were moved to the Adirondack Correctional Facility not to keep it open, but to reduce density in other prisons and because it’s in a remote region with relatively low infection rates compared to the rest of the state. “It is well suited to provide incarcerated individuals 60 years of age and older with the opportunity to live in this therapeutic community setting designed to prepare these individuals for successful reentry into the community upon release,” he said.

In late March 2021, a judge ruled that New York should immediately start offering the COVID-19 vaccine to people in state prisons and jails. Corrections officials had previously announced that incarcerated people 65 and older would be offered the vaccine.

According to DOCCS, 74 of the 88 men at Adirondack have been vaccinated. As of June 8, 2021, 16,747 of the 24,000 people incarcerated in Virginia state prisons have been fully vaccinated for COVID-19. Kinney declined to say how many at Deerfield have been vaccinated.

Advocates feel that corrections departments will say that once people in facilities have been vaccinated, they will be relatively safe from the virus.

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“I do think that with more incarcerated people getting the vaccine, prisons are going to have a new excuse not to release people,” said Wanda Bertram, communications strategist at the Prison Policy Initiative. “So what I expect to see isn't a sudden drop from "tons of releases" to "no releases," but rather a change in how states justify releasing practically nobody.”

But a recent New England Journal of Medicine article says that vaccination alone won’t stop the spread of the coronavirus in correctional facilities, in part because “even a highly efficacious vaccine will have suboptimal preventive effects in high-spread, congregate settings.”

Already, transfers between New York State prisons, which had been put on hold during the height of the pandemic, have resumed. In early May, Kenneth Rogers, 61, was transferred to Adirondack from Woodbourne Correctional Facility after he refused to get the COVID-19 vaccine.

“The officers all know me and they said, ‘Rogers if you deny [the vaccine] they’re going to transfer you out of this jail.’ And I said, ‘They gotta do what they gotta do. I'm not putting that stuff in my body,’” said Rogers.

Rogers believes he was used as an example, to force other men at Woodbourne to get the vaccine lest they be transferred to Adirondack as he was. He said he’s afraid of getting COVID-19 as DOCCS doesn’t follow proper precautions. Rogers said he and another man who was transferred from Woodbourne were first taken to Downstate and Clinton Correctional Facilities, where they were mixed in with the general population, before they were taken to Adirondack. At Adirondack, Rogers says staff have refused to be vaccinated or regularly tested.

At least 19 men were moved to Adirondack between April 23 and June 11. Men at the facility say they’ve been told by prison staff that more people are going to be transferred. They also say staff members said Adirondack is going to be used to house those who refuse the vaccine at other facilities. According to one source, six men who were transferred to the prison in late May had refused to be vaccinated at the facility where they’d been previously. A DOCCS spokesperson said that, “For safety and security reasons, we do not discuss future transfers between facilities or local jails,” and that “the vaccine is not mandated and no individual has been punished or transferred as a result of refusing the vaccine.”

Lawyer and bioethicist Benjamin Barsky, along with the other authors of the New England Journal of Medicine article, said that vaccination alone would not fully stop COVID-19 transmission in correctional facilities: “Fortunately, we already have strong evidence for a policy tool that can stop the spread of Covid-19 in jails and prisons: decarceration.”

Pending geriatic parole bills might provide an avenue for this decarceration — one that would not rely solely on governors’ discretion. In January 2019, New York State Sen. Brad Hoylman introduced a bill that would give people in prisons who are 55 and older a chance for parole, regardless of their crime, as long as they have served 15 years of their sentence. Despite numerous rallies held by RAPP and other advocacy organizations, lawmakers failed to pass the bill before the most recent legislative session ended on June 10.

But even those bills that were rushed through during the pandemic did not lead to many releases. In April 2020, the Nevada Sentencing Commission voted unanimously to fast-track the implementation of a geriatric parole bill to release some people over the age of 65 who had been convicted for nonviolent offenses. Under the terms of the bill, only six of the more than 12,000 people incarcerated in Nevada state prisons qualified for early release.

Virginia has had a geriatric parole law since 1994 that allows people 65 or older who have served a minimum of five years of their sentences, or 60 years and older who have served at least 10 years of their sentences, to be considered for release. People who have committed Class 1 felonies, like capital murder, are ineligible. But the Virginia parole board rarely releases people who apply for geriatric release, due to the nature of their crimes.

Samuel Butler, 72, is incarcerated at Deerfield and has been denied early release 15 times under the geriatric parole law, he says, because he was convicted of a sex crime. Butler had COVID-19 and says he was unable to eat for nine days and was taken to the infirmary three times due to low oxygen levels and dehydration. “Even though meds were ordered by different doctors, I never saw the first dose,” he said.

Despite stipulations of noncompliance filed by the ACLU, the process of releasing people from prison continues to be slow in Virginia, in part because six people have to review each application. Heilman says this is excessive scrutiny for people who are less than a year away from their release date.

As part of the settlement, the ACLU asked Gov. Northam to expedite the review of conditional pardon requests coming from people who, like Dillingham, have medical issues that would make them more vulnerable to contracting the virus. Heilman says the governor’s office has refused to share information about how many applications have been reviewed. Gov. Northam’s office did not respond to multiple requests for comment.

Though several men at Deerfield say they have been vaccinated, there’s still the fear that the virus, including one of the variants, could make its way back into the facility. And there is still the lingering trauma from all the sickness they’ve experienced and the death they have witnessed.

“I may be the last one waiting on a Covid-19 conditional pardon that is still alive [in this pod],” Dillingham said. “I just want to go home now. I am tired. I am a Gulf War Veteran, and I lost friends during the war, but this was no war, this was negligence, just plain negligence.”

Lisa Armstrong reported this story as a 2020-2021 Knight-Wallace Reporting Fellow at the University of Michigan. An award-winning journalist with credits in The New York Times, The Intercept, The Daily Beast, Rolling Stone, USA Today, The New Yorker and other outlets, she is currently reporting on incarceration. She has had grants from Type Investigations, The Carter Center and the Fund for Investigative Journalism/Schuster Institute for Investigative Journalism to support her work. She is a professor at the UC Berkeley Graduate School of Journalism.