Brendan Dassey Fighting Injustice and COVID-19
When society divests people of their agency to protect and care for themselves, the institutions manufactured to mete out punishment have an affirmative obligation to protect those without capacity from harm.
This is an edict often debated – we can look to Justice Clarence Thomas dissent in Hudson v McMillan where he found the Constitutions Eighth Amendment does not recognise “deprivations” or “hardships” during incarceration. Fortunately, his judgement did not prevail. COVID-19 has presented a different question to not only the judiciary but to local legislatures and those tasked with presiding over the lives of over two million Americans - in particular, the more than two thousand souls currently incarcerated at Oshkosh Correctional facility in rural Wisconsin.
Oshkosh Correctional on Lockdown
As COVID-19 haemorrhages beneath the cell doors of the incarcerated across the country, its unsolicited advance is once again threatening the health of Brendan Dassey. On September 25th Dassey’s unit went into lockdown to mitigate exposure to the virus.
As of October 5th Oshkosh Correctional has 341* active positive cases with further test results pending.
The prison population is disproportionately vulnerable to this pandemic as the virus continues to infect more than 100,000 inmates across the United States, resulting in the deaths of over 900 people and several correctional officers. In Wisconsin today 2,068* inmates are in quarantine and a further 985* in isolation. In today’s COVID norm, solitary and the “hole” have replaced death row, as the coronavirus sentences prisoners to ill-health, physical and emotional aftershocks and on random and preventable occasions, to death.
There is a deprivation of humanity that limits the Wisconsin Department of Corrections and the executive branch from ratifying action to reduce the prison population outside of the current criteria. Oshkosh Correctional currently has 18 positive cases and a percentage of those directly impact Brendan Dassey. In a state wide mandate issued mid-March, all in-person visits were suspended, “We take our responsibility to protect staff and persons in our care very seriously and out of an abundance of caution are taking actions to minimise the risk of bringing COVID-19 into facilities,” reads a statement from the DOC in March. So, in the absence of an epidemiologist one could conclude that staff have been a conduit of contagion.
In early April, COVID-19 was in an embryonic stage of familiarity with 1,550 confirmed cases registered in Wisconsin. However, numbers would scale quickly as figures published by the DHS in September recorded a staggering 113,645 people had tested positive since February. Left unchecked the DHS has reported an increase of cases across the state’s 72 counties. More than 1,280 Wisconsinites have died.
Meanwhile the Republican majority in both the Senate and Assembly have challenged Governor Evers emergency COVID orders including state wide mask mandates. A stay-at-home order issued by DHS Secretary Andrea Palm was struck down in March. Seemingly the political ideologies of the Wisconsin GOP supersede the impact of COVID-19 with Senate Majority Leader Scott Fitzgerald asserting that his Republican colleagues “stand ready to convene the body to end the Governor’s orders.” A reckless approach that contributes to the continuing surge of cases in communities where the 546 staff of Oshkosh Correctional live.
Prison populations are inherently susceptible to the spread of infectious disease. Coupled with pre-existing health conditions, age cohorts and high rates of acquired comorbidities within the prison environment, the transmission of COVID propagates with ease. The need for decarceration is amplified in this setting.
“Our criminal justice system remains in dire need of reform to eliminate racial bias and prolonged incarceration,” Governor Evers recently wrote when referencing the expansion of Wisconsin’s Earned Release Program (ERP). While this initiative is welcomed it is also conservative. Governor Evers can pursue other decarceration avenues including Wis. Stat. § 302.35 "Emergency Release Power" and Wis. Stat. § 302.425 (2) "Other Release Power,” to stymie the escalation of infection. Yet again, there is still no relief for those with claims of actual innocence like Dassey.
A Cruel and Unusual Punishment
Brendan Dassey is currently under lockdown with restricted communication to the outside world. His conviction both unjust and without merit, devoid of evidence or corroboration warrants further scrutiny under the Eighth Amendment standard of review. COVID-19 is but another prong to the cruel and unusual punishment Dassey continues to endure.
"Thank you for your advocacy on criminal justice reform. Please know that our administration continues to listen to your voice and is determined to persist in the hard work of making Wisconsin a more just, equitable, and merciful place,” writes Governor Evers and Lieutenant Governor Mandela Barnes in recent communications.
A merciful executive branch would review a clemency petition on merit.
*Updated October 5th 2020
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