Centro Prodh vs. the Governor of the State of Morelos et al.

COVID-19 and Incarcerated Persons’ Rights to Personal Integrity, Health, and Life

Necessary measures to protect the life and health of incarcerated individuals against the risk posed by COVID-19 has taken on worldwide urgency. Systemic and endemic problems, including overcrowding, inadequate health services, and poor living and sanitary conditions, such as poor cell ventilation, characterize penitentiary systems across multiple jurisdictions. These factors are exacerbated by the COVID-19 pandemic, endangering the lives of detained individuals, prison staff, and the surrounding community. Compared to the wider population, the incarcerated are particularly vulnerable and at higher risk of contracting the virus, which can spread rapidly in detention due to the high concentration of persons in confined spaces.

The most urgent measure to address the health crisis consists in reducing the prison population to allow for physical distancing. States also have a responsibility to take appropriate, immediate measures to protect the lives and health of incarcerated persons, due to the fact that, under international human rights law, states have a heightened duty to protect the health of those in its custody. It also has an obligation to investigate every death in custody and to treat the bodies of the deceased with dignity.

This public interest amparo lawsuit was filed by the Mexican organization Centro de Derechos Humanos Miguel Agustin Pro Juarez, A.C. ("Centro Prodh") against the governor of the state of Morelos, the Mexican Ministry of Health, and other state authorities. Admitted by the district court of Morelos on November 11, 2020, the lawsuit draws from international and domestic legal standards and argues that the failure of authorities to enact pandemic guidelines and policies runs contrary to their obligation to protect those in the Morelos state prison system from COVID-19. It uses a public health rationale to argue that the state has obligations toward prison populations during the pandemic, drawing from international and national human rights law and jurisprudence. It is supported by expert opinions in epidemiology, public health, forensics, and pre-trial justice.

Facts

Mexico’s prisons are considered epicenters for the rapid spread of COVID-19, and several have already reported cases. Despite this, authorities have not taken meaningful steps to prevent the spread of the virus, including through enacting legal regulations and comprehensive public health policies to properly manage and manage the spread of the virus behind bars.

The situation is especially acute in prisons in the state of Morelos, where incarcerated individuals often face systemic abuse, and where there is long-standing overpopulation, deficient medical care, and insufficient access to water and personal hygiene products. At both the federal and state level, there are currently no effective and comprehensive COVID-19 guidelines nor public health policies regarding early release and alternatives to detention, access to medical care, preventive measures, physical distancing, investigations of death in custody, and the identification and treatment of the bodies in cases of suspected or confirmed COVID-19 deaths. So far, few prisons have provided hand sanitizers and masks to its incarcerated populations, and there has been no concerted effort to release those who are particularly at risk of complications from COVID-19 and those who do not pose a serious risk to society.

Open Society Justice Initiative Involvement

The Justice Initiative is serving as an advisor to counsel and joined Centro Prodh in developing legal arguments.

Arguments

The amparo argues that:

1. Healthcare is a fundamental right in prison: In order to guarantee the right to health held by incarcerated persons, the state of Morelos has a heightened duty to protect the physical well-being of incarcerated people by, among other measures, providing them with an adequate level of health care. In the context of a pandemic, state authorities must adopt and implement a number of specific measures.
2. A failure to provide healthcare to prisoners may violate the rights to health and to life and the prohibition ill-treatment: Adequate conditions of detention and appropriate access to healthcare are compulsory to the right to personal integrity, the right to health, the right to life, and protection from ill-treatment.
3. The lack of guidelines and policies specific to COVID-19 addressing the risk posed by the pandemic in prisons contributes to the failure to provide adequate healthcare to those in prisons, in violation of the right to health, the right to life, and the prohibition of ill-treatment.
4. In the context of a pandemic, the right to health requires, first and foremost, the reduction of prison population: Given current prison conditions, lowering the number of incarcerated individuals is the most urgent priority for mitigating the risk of COVID-19 transmission. Authorities should also ensure that those who are released have access to housing services and community-based resources to facilitate access to employment, permanent housing, and healthcare.
5. States have a responsibility to take measures to protect the lives and health of those who remain incarcerated: In addition to medical treatment, this should include access to preventive medicine and adequate sanitary conditions, including appropriate occupancy levels, access to direct sunlight, running water, and good ventilation. Incarcerated persons should also be supplied with adequate quantities of essential personal hygiene products necessary for health and cleanliness and general hygiene products, such as cleaning materials to keep clothing and living area clean.
6. The absence of specific protocols regarding autopsies, investigations into death, and the management of the bodies of the deceased violates the right to health and life as well as the prohibition of torture and ill-treatment: In cases where incarcerated individuals pass away, authorities must conduct an effective investigation around the circumstances of death and carry out systematic autopsies. Cremating and burials in mass graves without autopsies also violates the right to health and life. The lack of information provided to the relatives of the decreased people regarding the cause of death and the physical location of their relatives’ graves can lead to the violation of the prohibition of torture and ill-treatment.
7. Effective interagency management of COVID-19 in prisons: Proper interagency cooperation, particularly active engagement of all responsible authorities and effective coordination between local penitentiary authorities and the state public health system, as well as Attorney General and Public Defender, are crucial to guaranteeing the application of public policies and practices within places of detention.
8. Equivalence of care and non-discrimination: Incarcerated persons must have access to the same standard of healthcare available to the public. Medical services must be delivered without discrimination and access should be free of charge, fair, and transparent, and effectively meet their medical needs.
9. Transparency about COVID-19 in prison and mitigation measures: Prison authorities should circulate basic information on COVID-19 to incarcerated persons, staff, and visitors, including ways to prevent its spread, known symptoms, available treatments, and protective measures that have been or can be taken in detention.

The amparo complaint is available for download in English and Spanish.