By Heather Hamilton
In an American Bar Association hosted online program, “Left to Die: Incarceration from Katrina to COVID” on the 15th anniversary of Hurricane Katrina, the program discussed the terror and unnecessary suffering of incarcerated individuals in 2005 when Katrina devastated New Orleans—and considered parallels to the current crisis faced by people imprisoned now during COVID.
The panel included ACLU’s National Prison Project’s Eric Balaban, New Orleans’ Public Defender Meghan Garvey, and Alameda Public Defender Brendon Woods.. The conversation was moderated by Malia Brink with the ABA SCLAID (Standing Committee on Legal Aid and Indigent Defense).
There were more than 6,000 people in prison in August 2005, including children as young as 14. The judges weren’t releasing non-violent offenders. There were folks held on bail, but most were people living in poverty and it was well known they could not pay.
There were no policies to slow down arrests until after the evacuations. When Sheriff Gusman was given the chance to relocate prisoners, he responded, “We’re going to keep our prisoners where they belong.”
They were not evacuated when the storm hit, when the levees broke, or when the flooding began. They were left without food or water. They were forced to swim to safety, they risked their lives to 
evacuate, even the deputies’ lives were risked.
Haunting desperation is found in a letter written by a man trapped in Orleans Parish Prison (OPP) during Katrina. ABA’s Ted Howard read the letter. No food or ventilation, inmates suffering from not having medicine, others physically assaulted as riots broke out. Those at OPP were the last to evacuate the city. When all others were evacuated, Gusman invited the state to confine and trap more prisoners.
Water was to their chest when folks at OPP were finally evacuated, loaded onto a boat, and transferred to Hunt Corrections Center. They were moved out to a field where they stood in the pouring rain for hours, with no shelter and no bathroom. They were out there for four days. Stabbings, assaults, gangs fights ensued.
The armed guards stood along the fence, watching but doing nothing. Their lives were in danger while the deputies just stood there. “We should have been protected,” said the man subjugated to this cruel and unusual punishment.
“Framing as a natural disaster is frustrating,” said Meghan Garvey, Public Defender in New Orleans. “There are things beyond our control but other things were in our control and people did nothing.”
The ACLU’s report “Abandoned and Abused” gives details and context of the tragic situation people faced. “It is a great report, but it’s hard to hear because it’s painful and sad. People who made neglectful decisions still have power,” Meghan explained. Gusman still holds his position today.
Yet during Monday’s discussion, the group wanted to focus on the positive. A lot has been learned since Katrina 15 years ago, explained Meghan. Juvenile defense work stemmed out of the tragedy, and there are no longer 14-year-olds in adult prisons.
The community responded by discouraging and preventing the construction of more behemoth jails and the community pressure allowed for redirection of funds.
Public defenders received seven million more dollars for public defense when others realized the importance of their service to the community. Meghan also explained that a parity ordinance was passed in New Orleans, which mandated the public defender’s office receive at least 85 percent of the budget of the district attorney’s office.
Such laws do not exist in many places, and its passage in New Orleans was tied to the lessons learned during Katrina.
Quite significantly, the jail population that was more than 6,000 when Katrina hit is now down to about 864 today. Panelist Eric Balaban from the ACLU explained how at the time litigation didn’t appear as a viable option. Instead, they focused their efforts on ensuring OPT was not repopulated to the same numbers. By working with local organizations, they were successful.
Flash forward to the current moment.
The world faces a deadly pandemic and those behind bars are trapped inside crowded jails and prisons. They are unable to follow social distancing guidelines that are mandated for people on the outside.
“In my almost 25 years I have never seen anything like COVID,” Public Defender Brendon Woods of Alameda County, California, explains. From the courts shutting down to the evisceration of speedy rights protected by the Constitution, it’s been a tireless fight keeping pace and trying to get ahead of the virus, he said.
Barry Watkins is in a Georgia prison. He is represented by the Southern Center for Human Rights. He is 60 years old and stuck in prison where he could catch COVID at any moment.
Clayton County Jail is doing what it can to make sure this happens. Three men are in a cell made for two. One is forced to sleep on the ground next to the toilet. There’s no ability to social distance during meals. Watkins has been using the same mask since May and his towel has not been washed in two months.
Watkins heard about COVID through his adult children on the outside; officers were silent about the global pandemic. He was sick for two weeks—had a fever, cough, diarrhea. He requested medical assistance but was denied because they said he did not have a fever. His cellmate became ill and was vomiting. The officer responded they would not do anything unless the cell mate was passed out or bleeding.
In early March Woods and other public defenders realized people were going to die if they didn’t act. Woods described the monthly meetings taking place with public defenders, prosecutors, and judges.
In March, the immediate demands were for release of incarcerated persons that were over 50 years of age, experiencing medical vulnerabilities, those in custody on technical violation, those with low level offenses, and folks with 180 days or less left of their sentence.
This initial request resulted in about 300 releases in roughly a week’s time. For the following four weeks, only about four were released in total. When the first positive test came in early April, Woods begged for the release of more people and was met with silence.
Fortunately, the court implemented zero bail for all misdemeanor and low level offenses. This reduced the population drastically, from 2,600 to approximately 1,800 at Alameda’s Santa Rita jail.
Then in June, the outbreak occurred at San Quentin. Woods received letters from terrified prisoners. A letter was sent to Governor Newsom with over 300 signatures but Woods and the signees received no response. “When someone writing me from prison is saying action will lead to death, why don’t we listen to the people closest to the problem?” ask Woods.
Today, there have been over 26 deaths at San Quentin.
Most releases have come from court orders—about 500 people have been released this way. The bail schedule modification was crucial in lowering the population, as well the sheriff’s efforts to cite and release, explained Woods.
A writ of habeas has been filed in Marin County. It was joined by one attorney and several public defenders offices. Woods said it hasn’t been successful yet but they have done as much as they can to put pressure on.
Balaban explained that while COVID is different in type and kind from Katrina, it echoes the crisis in that it has created unconstitutional conditions of confinement.
The national office of the ACLU has brought 129 lawsuits for detainees, 73 being held pretrial and 56 being detained by ICE. The releases are ordered by the CDCR Secretary, who has been and can be influenced by public and political pressure.
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