Gaol Fever: What COVID-19 Tells us about the War on Drugs

Rick Lines, Naomi Burke-Shyne, and Giada Girelli

“In every situation, where a number of people are crowded together, whether in ships, hospitals, or prisons, unless the strictest attention be paid to cleanliness, and to a free ventilation or circulation of air, a fever soon or later breaks out amongst them, of a very contagious nature, and attended with very fatal effects”.^[1] So begins the account of Dr James Carmichael Smyth of an outbreak of jail distemper (typhus) in Winchester prison in England in 1780. Over the course of three and half months, 268 Spanish prisoners of war died, with Smyth himself surviving two separate bouts of the disease while caring for the sick men.

The rapid spread of contagion and death among prisoners was not a new phenomenon. The first documented outbreak of ‘gaol fever’ in England took place in Newgate and Ludgate Prison in 1414, resulting in the deaths of 64 prisoners and gaolers.^[2] Almost 50 recorded outbreaks of fever in British prisons predate the Winchester events described by Dr Smyth, resulting in the deaths of thousands.^[3]

Nearly 250 years later, the prisons of the world are struggling to address a new ‘gaol fever’ that threatens to dwarf the impacts of previous historic contagions—COVID-19. With physical distancing core to the COVID-19 response—an impossibility in most places of detention—the health risks of congested prisons have again come to the fore. Poor and overcrowded conditions of detention, coupled with a detainee population that often suffers from multiple heath vulnerabilities, have long made prisons susceptible to rapid spread of disease and death. The highly contagious nature of the COVID-19, its global spread, and the worrying levels of mortality associated with it, have therefore raised widespread concern.

The relationship between prison health and public health is well established. In many of the historic cases of gaol fever the contagion spread beyond the prison walls into surrounding towns and villages.^[4] In more recent years, transmission of both HIV and TB has been documented in prisons, raising wider public health concerns about the role of incarceration in sustaining those epidemics.^[5] For this reason, protecting people in detention from the spread of COVID-19 must form an integral element of the global response to the virus.

Adding to this challenge is the fact that there are more people incarcerated in penal institutions around the world than ever before. It is estimated that 10.7 million people are in detention worldwide.^[6] Few, if any, of these institutions are equipped with the type of intensive care facilities needed to treat acute COVID-19 symptoms, and the pressure on overall medical capacity created by the virus means that simply transferring sick detainees to the hospital is not a viable solution.

The emerging prison health crisis highlighted by COVID-19 has wider human rights implications. In late March, the Office of the UN High Commissioner for Human Rights and World Health Organization published joint guidance on people deprived of their liberty during the COVID-19 pandemic, highlighting their unique vulnerabilities and the need for states to continue to provide essential health services, including HIV treatment and harm reduction measures, during the pandemic.^[7]

In April, the European Commissioner for Human Rights issued a statement expressing concern that, ‘detention facilities are not adapted to face large-scale epidemics, and the basic protective measures such as social distancing and hygiene rules cannot be observed as easily as outside, exposing prisoners to greater health risks.’^[8]

Highlighting the standards established by the European Committee for the Prevention of Torture, the Commissioner stated, ‘the resort to alternatives to deprivation of liberty is imperative in situations of overcrowding and even more so in cases of emergency. Particular consideration should be given to those detainees with underlying health conditions; older persons who do not pose a threat to society; and those who have been charged or convicted for minor or non-violent offences.’^[9]

As with society as a whole, the risk of rapid COVID-19 spread among prisoners has prompted governments to respond in unprecedented ways. In the space of just a few weeks, more than 50 countries (see table below) have taken steps to reduce prison populations through the release of detainees. In some countries, the numbers are relatively small. However, in others—such as Indonesia, Brazil, Nigeria, Iran, and Turkey—the detainees released, scheduled for release, or diverted to home arrest number in the tens of thousands. While this situation is fast moving, and much of the available information relies on media sources, the total number of detainees to be released to fight the spread of COVID-19 is over 300,000, and is likely to increase.

These actions are welcome and highlight the public health risks of poor and overcrowded prison conditions worldwide. They also call attention to the huge number of people in detention for non-violent offences, and to the punitive policies that drive incarceration generally.

With the European Commissioner urging states to reduce overcrowding as a human rights-based response to the pandemic in prisons, the role of punitive drug laws in fuelling this crisis must come under scrutiny. Close to half a million people are incarcerated worldwide for mere drug possession. An additional 1.7 million are incarcerated for other drug offences, many of which are non-violent.^[10]

Overall, almost one in four people in detention globally is locked up on a drug charge, a figure that excludes a further 450,000 people estimated to be held in overcrowded compulsory drug detention centres in various parts of Asia.^[11] The geographic diversity of the COVID-19 release schemes points to the excessive use of detention all over the world.

If a blanket release of prisoners is a common response to COVID-19 in so many countries, it begs the question, ‘Why were these individuals in prison in the first place?’ Indeed, a considerable number of prison release schemes specifically target the release of people charged with low-level drug offences.

Much has been written about the role of the drug war, and the incarceration of people who use drugs, in driving the HIV epidemic in prisons worldwide.^[12] COVID-19 offers another reminder of how quickly new, frightening public health threats can emerge in the context of mass incarceration.

In his 1857 history of gaol fever in England and Wales, Dr Francis Webb wrote, ‘We know not, perhaps may never know, what the materies morhi of typhus may be ; but we do know that it invariably appeared in our prisons when human beings were crowded together, living in their own filth, without air, food, and water, and subjected to every depressing influence.’^[13] Dr Webb’s words describe prison conditions in most countries of the world today, environments that make physical distancing impossible, and the spread of COVID-19 inevitable.

Unravelling the carceral state must be a key goal for both health and human rights advocates, one in which drug policy reform must play a critical role. In Britain, the role of prisons in mass contagions drove legislative reforms that dramatically improved conditions for people in detention, to the point that by the early 1800s gaol fever was ‘entirely stamped out of our prisons, and they ceased to be centres of infection for surrounding districts, and a source of alarm to the nation at large’.^[14] The current pandemic must similarly serve as an impetus for states across the world to implement law reforms that address the crisis of prison overcrowding, and the punitive drug laws that drive it.

Only through a radical rethinking of our current approach to drugs, crime, and punishment through the lenses of human rights and public health will we achieve a 21^st century solution to an 18^th century problem.

Table 1

Rick Lines, PhD, is Associate Professor of Criminology and Human Rights, Swansea University, UK

Naomi Burke-Shyne is Executive Director, Harm Reduction International

Giada Girelli is a human rights analyst at Harm Reduction International

References

[1] James Carmichael Smyth, Description of the Jail Distemper as it appeared amongst the Spanish Prisoners, at Winchester, in the year 1780, London, 1803, p. 7.

[2] Francis C Webb, An Historical Account of Gaol Fever, Read before the Epidemiological Society, on Monday, July 6th, 1857, p. 1.

[3] Arthur Durant Willcocks, Alexander Popham, M.P. for Taunton, and the Bill for the Prevention of the Gaol Distemper, 1774: A Hygienic Retrospect, London, 1894, appendix.

[4] Ibid. Willcocks, appendix.

[5] Gen Sander, HIV, HCV, TB and Harm Reduction in Prisons. Human Rights, Minimum Standards and Monitoring at the European and International Levels, Harm Reduction International, 2016. Available at https://www.hri.global/files/2016/02/10/HRI_PrisonProjectReport_FINAL.pdf

[6] Roy Walmsley, World Prison Brief, 12^th edn, Institute for Criminal Policy Research, Available at https://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_12.pdf

[7] Interagency Standing Committee, IASC Interim Guidance COVID-19: Focus on Persons Deprived of Their Liberty, 27 March 2020. Available at https://interagencystandingcommittee.org/system/files/2020-03/IASC%20Interim%20Guidance%20on%20COVID-19%20-%20Focus%20on%20Persons%20Deprived%20of%20Their%20Liberty.pdf

[8] Commissioner for Human Rights, COVID-19 pandemic: urgent steps are needed to protect the rights of prisoners in Europe, Council of Europe, 4 April 2020. Available at https://www.coe.int/en/web/commissioner/-/covid-19-pandemic-urgent-steps-are-needed-to-protect-the-rights-of-prisoners-in-europe

[9] Ibid.

[10] UN system coordination Task Team on the Implementation of the UN System Common Position on drug-related matters, What we have learned over the last ten years: A summary of knowledge acquired and produced by the UN system on drug-related matters, March 2019, Available at https://www.unodc.org/documents/commissions/CND/2019/Contributions/UN_Entities/What_we_have_learned_over_the_last_ten_years_-_14_March_2019_-_w_signature.pdf.

[11] Lunze K, Lermet O, Andreeva V, Hariga F, ‘Compulsory treatment of drug use in Southeast Asian countries’, International Journal of Drug Policy, 2018 Sep;59:10-15.

[12] Global Commission on Drug Policy, The War on Drugs and HIV/AIDS: How the Criminalization of Drug Use Fuels the Global Pandemic, 2012, Available at https://www.globalcommissionondrugs.org/wp-content/uploads/2012/03/GCDP_HIV-AIDS_2012_EN.pdf

[13] Webb, p. 11.

[14] Willcocks, p. 13.