In November, Ronechia, a 22-year-old mother in Houston, had her 3-year-old son taken by Texas Child Protective Services after an accident left them both hospitalized. Since then, she and the boy’s father have been regularly attending court hearings and parenting classes in the hope of getting their son back. 

The 3-year-old was set to return to the care of his grandparent in early March — calls had been made to references, and the family had cleared out and redecorated a room for the boy, complete with a brightly colored rug and new toys. But that room still sits empty. 

Because of his age and a heart condition, the child’s grandparent is at particular risk of serious complications of Covid-19, the disease caused by the novel coronavirus. And the parenting classes Ronechia and her boyfriend have been attending to comply with their service plan have been put on hold due to the risk of congregating in groups. For now, the decision was made by the boy’s caseworkers to keep him where he is, at a foster home he’s been staying in since November.

Last Friday, Ronechia and her boyfriend were able to visit their son, but when she asked about bringing him cupcakes for his fourth birthday this week, the caseworker said they were limiting face-to-face visits with family to curb the spread of the virus, and she’ll have to settle for a video chat with her son on his birthday. 

“He doesn’t really understand, and he’s ready to come home,” Ronechia told Vox. “I’m worried because he could get sick, he gets sick easily. I text the caseworker every day to see how he’s doing — and in the midst of all this going on, he normally [would] be with me.”

Families and children involved with the child welfare system have begun to experience disruptions like Ronechia and her family’s. Courts are closing, cases are delayed, and in-person contact with social workers is severely limited. As a result, vulnerable children who are already experiencing great instability are being further destabilized. 

Advocates and attorneys are worried about kids at every stage in the child welfare system. Because of the calamitous economic fallout of the coronavirus pandemic, people in poverty — which make up the vast majority of families involved with the child welfare system, and who may have held it together precariously before this — are suddenly unable to pay for rent, bills, or food, or find child care for their children. These are typical reasons that a state agency might get involved with a family and make a finding of neglect. 

Reports of child abuse may also rise under the strain — one hospital in Fort Worth, Texas, saw six cases of child abuse, all children under 6, last week; one of the children died. The hospital said it typically sees eight cases of such abuse in a month. 

There’s also the approximately 440,000 children (according to 2017 federal data) already in foster care around the country, many of whom had been moved from placement to placement before the crisis. Many of them are also currently housed with older foster parents who are at greater risk of serious complications from Covid-19, the disease caused by the novel coronavirus. According to the 2017 data, about 55,000 of those children are placed in institutional settings or group homes, places that are more susceptible to the spread of disease. 

And, of course, foster children’s health is about more than their physical safety. All of these children have experienced trauma, and many need mental health services and are taking medications. At this time of great uncertainty, many courts around the country are severely limiting or denying physical visitations with family members, leaving an already isolated population feeling even more so. 

“This is often a forgotten population — unless something horrific shows up in the news,” said Will Francis, the Texas chapter director of the National Association of Social Workers. “There are always weak points because the system itself has never had what it needs to make sure it’s strong across the board.” 

As the Covid-19 crisis progresses, welfare advocates worry that those weak points may turn into dangerous gaps that could seriously endanger children and the many service providers who care for them.

The increased stress on an already failing system

In nearly every state, the foster care system is operating at or beyond capacity. It is also dealing with a lack of funding and a rapid turnover of caseworkers on the front lines who are overworked, underpaid, and often under-resourced to provide the support that kids and families in the system need. 

Because the nation’s child welfare system is handled by each state individually, and counties are enacting their own policies, there’s no consensus at the moment about best practices in this time of crisis. Jerry Milner, the associate commissioner of the federal Children’s Bureau, issued guidance last week that permits caseworkers to hold their monthly face-to-face meetings virtually with children in their charge, as well as allowing extensions for states that have been required to improve their system in order to maintain federal funding. 

“We remind states that there are no federal requirements that govern the procedures for conducting investigations of alleged child abuse and neglect,” Milner wrote in his letter. “Instead, states are required to adhere to their own protocols and timelines for contact, safety and risk assessments, and other investigation procedures.”

Those adjustments could look very different depending on where you live. Some advocates are worried about the potential for “triaging” investigations to only the most serious reports, leaving some vulnerable children at home in dangerous situations. 

“Right now, all of our education systems are upset and many of our teachers are trying to provide them online,” Francis said. “Normally, if a kid wasn’t getting fed at home or was having a bad day, it was a teacher that saw them. You’re losing a huge number of eyeballs on kids.”

Another worry is that investigations will continue to ramp up while services for parents — which are required in order to get their children back — will be canceled, leaving many parents without their children for longer periods of time. 

“Over 60 percent of kids in care are there because of economics — these are neglect not abuse cases, and that’s a result of persistent inequality,” said Kevin Campbell, a longtime child welfare advocate who developed Family Finding, a model for reunifying foster children with their family members. “Those families are already vulnerable, and $2,000 coming in the next three months [as some federal proposals being debated now in Congress would include] may be helpful, but it’s not going to solve problems for these people, if they’re even connected enough in the pipeline to get it.” 

Dawn Post is the deputy director of A Better Childhood, a nonprofit that has brought class action lawsuits against nine states and the District of Columbia, accusing them of violating the civil rights of the children in their care — including subjecting them to abuse that’s sometimes worse than they experienced in their homes.

In a recent class action suit the nonprofit filed against Oregon, their plaintiffs include children who have been split from their siblings, shuffled to multiple homes, and left to languish in restrictive treatment centers long after they were needed because there was nowhere else to put them. She said that in states that are involved in class action lawsuits, or are already subject to federal court orders to improve their child welfare systems, the Covid-19 crisis is delaying much-needed reforms. 

In fact, Mississippi — which has been repeatedly found to be out of compliance with a 2008 court order to address its unmanageable caseloads, a failure to visit children in care, and placement of children in “unqualified, unlicensed facilities” — has already filed a notice with a US district court that the state won’t be able to comply with the terms of its court-ordered agreement for the duration of the crisis. 

“When you have a state that is already in crisis and they have acknowledged that they’ve been in crisis,” Post said, “things are only going to get worse.”

In the pandemic, there are court delays and rapid changes to system protocols

With courts closed or limited due to the pandemic, county judges are making sweeping rulings to apply major temporary changes. In Los Angeles County, for instance, the presiding judge of the juvenile court issued a ruling finding “in-person visitation poses an imminent health and safety risk,” temporarily suspending visitation by family members without explicitly requiring video or phone visits instead. Other counties have begun to limit — but not outright suspend — family visits, or to require virtual visits in place of face-to-face contact. Because of this, there’s been some confusion about what best practices look like in this time of crisis.

Family courts around the country have begun suspending or restricting court operations by holding only emergency hearings. This leaves a lot of pending reunifications largely on hold.

Because of statewide disaster declarations, many courts have suspended the deadlines for child welfare cases that were put in place to ensure that children have a resolution to their case in a timely fashion, either by reunification or entering into a new permanent home. 

Houston is part of Harris County, the third-largest in the country. The six dedicated juvenile courts there have been whittled down to one operating courtroom that the judges alternate through, with a maximum number of people in the courtroom set at 10; county and district attorneys are videoconferencing in. “I have masking tape drawn eight feet from the bench and an X marking the spot where each party should stand,” said Judge Natalia Oakes, who presides over the 313th District Court. Oakes’s court is also responsible for juvenile offenders, which she said are the focus right now. “Priority is juveniles in detention,” Oakes said. “As for CPS, parents have their rights but since the [Texas] Supreme Court extended deadlines, that’s on hold.”

Still, Oakes stresses, “things are changing by the hour.”

Nena Villamar, the chief attorney for the Maryland Office of the Public Defender’s Parental Defense Division, said the rights of parents, which are already often sidelined, need to be stressed now amid the increasing turmoil.

“Parents are going to lose their jobs. Our clients are already poor to begin with — we only represent indigent clients. It’s going to be hard to find a job, and that’s going to impede their attempts to reunite with their children,” Villamar said.  “Parents who can’t afford housing or basic necessities, there are going to be more calls to the Department of Social Services and they’re going to say, ‘Well, this is neglect so we’re going to take your kids.’ That’s how I see it playing out — I hope I’m wrong, though.”

As for restrictions on visitation, Villamar said it should be treated as an essential service — just as essential as investigations. “If they can still go out to the houses to remove children, surely they can provide visits,” Villamar said.

Villamar’s office has sent a letter to the secretary of Maryland’s Department of Human Services asking for a litany of things that could help parents reunite with their kids quicker, including dropping nonessential service requirements, fast-tracking cases close to reunification, and continuing visitations in some form throughout the crisis. 

Another thing Villamar is asking: for parents to be notified if their children experience symptoms of Covid-19 or are diagnosed with the illness. As it stands now, when the state takes temporary guardianship of a child, they are not necessarily required to let parents know about illnesses or medical visits. “I’m asking them to keep parents in the loop because they’re scared, just like you and I would be if our kids were not with us,” Villamar said. 

Kids are staying in unstable — and potentially unsafe — placements

Since the outbreak, A Better Childhood’s Post said she’s heard anecdotally a number of stories about older foster parents asking for children to be removed from their homes based on the risk of contracting Covid-19, especially for older foster parents, of whom there are many. 

“Additionally, these foster parents didn’t sign on to have children under their feet 24/7, with schools closed and other providers that typically provide respite for them closed,” Post said. “You’re going to have a large number of foster parents and providers say, ‘This is too much for me to handle’ and asking for children to be removed from their homes.”

For children who have already been experiencing instability, multiple moves or rapid moves in crisis are difficult to handle. Plus, there’s the question of where to put them. There’s already a shortage nationally of foster homes for kids, and many foster parents are understandably concerned about bringing new children into their home at this time, especially if they already care for other children or are elderly themselves.

Post said she’s concerned about a rise in placing children in institutional settings, like residential treatment centers, due to having nowhere else to put them.

Those facilities, because of their large populations, also pose a risk for the children in them and the staff that service them. Visitation at these placements has already begun to be restricted, further isolating children who are already isolated from their families, friends, and communities. “The concern is, with no one going in and laying on eyes, what’s happening in these places. If staff becomes sick, if children get sick and you have to isolate them — these are children who have already been marginalized,” Post said. “I’m concerned about their physical and mental health.”

Kevin Campbell of Family Finding says now is the time to search extensively for family and community members who already have existing relationships with foster children and ask them for their support. “The relatives and the people that know these kids in the community — teachers, people who care for them — are all home right now taking care of one another and taking care of kids,” Campbell said. “People are never more generous than in a crisis — there’s never been a better time to find these people who care about these kids. That can be done on the telephone.”

Still, he acknowledges that not all child welfare systems are thinking creatively in the midst of this crisis. “It tells you something about how people have a tendency to operate in a casework-as-usual system — that first families are dangerous and that foster families are safe. The truth is sometimes first families are dangerous and sometimes so is the foster care system. Neither are solutions on their own, they have to be made safe,” Campbell said. “The approach so far has been to limit the vectors and wait this thing out. But it doesn’t work that way. Kids will be bouncing. And when people get sick, they’ll be bouncing even more.”

Social workers are also at risk, and the industry could see a shortage

Children aren’t the only ones at risk during the pandemic. Social workers on the front lines are in and out of homes every day as part of their job. Some of this is shifting to virtual platforms — like monthly check-ins with children whose cases they manage — but some parts of the job, like investigating abuse or neglect, needs to happen in-person. In Los Angeles, social workers have said they’ve been conducting home visits without proper protective gear, the Chronicle of Social Change reported.

“So much of social work is predicated on building relationships, by sitting and connecting with people in person,” said Will Francis of the National Association of Social Workers. “Best practice is always to increase visits and make sure you’re getting quality facetime and being client-centered. In this case when that’s not possible, we’re seeing some real gaps in basic services — mental health, social — in a time where all the advice is about how to stop the spread.”  

“When it comes to safety versus best practices, safety always wins,” Francis added.

Francis said he expects there will be turnover as a result of this pandemic — some will need to stay home with their children, and others won’t be able to handle the increase in already crushing obligations. Also, because testing centers are closed at least until mid-April, Francis said no one is currently able to take their social work licensing exams. Social work students who rely heavily on internships for their degrees are in many cases unable to work in in-person settings. “We might have a break where we don’t see new licensed social workers,” Francis said. 

Another potential shortage is of foster parents themselves — something many places around the country are already experiencing, but might be made worse with elderly foster parents dropping out of the pool and new ones hesitant to take their place. “Say I was considering being a foster parent — I sit down in training sessions, child-placing agency staff comes into my home, there’s an inspection by the fire department, caseworkers come in — that’s a lot of people in your home you’re not supposed to have in your home right now,” Francis said.

And with an economic crisis looming, the magnitude of which is still unknown, nonprofit service providers and state agencies are already bracing for cuts, particularly to the kinds of services aimed at helping at-risk families keep their children at home safely. 

“Many of our CPS families are single moms, families working multiple jobs, dealing with a lack of health care, mental health care, family support — all those things that create those issues for our families are under more stress right now, and that’s the danger zone. If mom has no school and afterschool program, and no bus to take the kid to get the meal — that’s one you’re just not sure what’s going to happen,” Francis said. “My worry is, does this lead to another tragedy because of what the cuts are and because we’re not taking the best care we can of the caseworkers and providers and the kids themselves?”

As for Ronechia, she’s trying to stay focused on the return of her son, but she is barely holding it together. “Me being a parent, I really feel like it’s nothing I can do about it but do what I have to do to get him back in my care,” she said. “But I feel depressed, stressed out … I feel lost about my baby.”

For years, criminal justice advocates have been fighting for an end to cash bail. They say the practice creates two tiers of the justice system: In one, wealthy people can bond out of jail and work out their cases upon release; in the other, poor people, often accused of low-level crimes, can’t afford bail and have their lives upended while awaiting trial. 

At the start of the new year, New York joined states like California and New Jersey in taking steps to cease this practice. Criminal courts in the state are now prohibited from setting cash bail for most misdemeanors and nonviolent felonies.

Ahead of the law’s passage, New York Governor Andrew Cuomo, who proposed his own version of the legislation, praised the move. “The blunt ugly reality is that too often, if you can make bail, you are set free, and if you are too poor to make bail, you are punished,” he said.

But just days after the law took effect, New York media and politicians were in a frenzy. Over the holidays, New York City and surrounding areas had seen a spate of anti-Semitic attacks, and critics of the bail law called for a hate crime exemption to it. Outlets like the New York Post latched onto cases like that of Tiffany Harris, who was arrested three times for assaulting Orthodox Jewish women in Brooklyn in less than a week: “Harris walked free under the state’s new soft-on-crime law,” the Post wrote. On January 10, the New York Daily News ran a cover story of a homeless man who had been charged with assault being released without bail. Staten Island Assembly member Nicole Malliotakis told Tucker Carlson on Fox News that if the law doesn’t get modified, “There’s going to be blood on Governor Cuomo’s hands.”

By January 8, Governor Cuomo had gone on the record saying there were “consequences we have to adjust for,” and that he was open to modifying the law in the next session.  

But much of the coverage has obscured or downplayed one crucial point: that since 1971, public safety — the idea of the “potential dangerousness” of someone accused of a crime — has not been a legal reason to set bail for a defendant in New York. For nearly 50 years, judges have only been able to consider the defendant’s likelihood of coming to their court date when setting bail, and have been directed to use the “least restrictive” means to get them there. However, just because “potential dangerousness” hasn’t been legally allowed doesn’t mean it hasn’t been the de facto use of bail by judges and prosecutors for decades. 

This fear-based messaging has been a favorite tool of opponents of the law. And it’s easy to see how it would catch on in the face of an uptick in hate crimes. But New Yorkers aren’t the only ones concerned about a spike in crime as a result of changing the bail system. Even though violent crime has dropped significantly around the country, some worry that more people charged with crimes “out on the streets” equals a more dangerous society. 

In truth, most people in court each day are there for minor offenses. Brooklyn Bail Fund, a nonprofit that has posted bail for more than 4,000 people who could not afford it, reported that those who were released were three times as likely as those who weren’t to have favorable outcomes to their cases. That’s because, defense attorneys say, people who are stuck in jail are much more likely to plead guilty in order to get out, rather than to fight their cases.

In a country overwhelmed by mass incarceration, where about 67 percent of those in county jails are there pretrial, a system where the amount of money you have on hand dictates your freedom seems antiquated at best and unconstitutional at worst.

The New York bail reform law is expected to decrease the number of pretrial detainees by more than 40 percent, according to a report by the nonprofit Center for Court Innovation. But standing in the way of a fairer system are misconceptions held by many Americans about what it is their justice system actually does.

The perception of bail reform versus the reality

Back in the 1960s, New York was in the throes of a similar debate on bail reform. The New York Times ran a series of editorials between 1963 and 1965 arguing the bail system was “a machine to penalize the poor” and advocating for it to be “abolished or drastically modified.” The idea of preventive detention, or detaining someone before their trial for public safety reasons, was hotly debated when the state was passing its first crack at bail reform in 1970. That year, the New York State Legislature passed a law that excluded the “dangerousness” clause and limited a judge’s reasons in setting bail to ensuring that the defendant returns to court. 

“Although, legally, bail is not supposed to be used to determine dangerousness, we see that happen all the time,” Khalil Cumberbatch, a formerly incarcerated person who now advocates for reform, told Vox. “Judges just don’t say the term ‘dangerousness.’” 

The idea of “dangerousness,” advocates stress, is tied into the racial discrepancies of our justice system. Two studies of state court data from 75 large jurisdictions in the 1990s found that bail was set at significantly higher rates for black and Latinx people. 

In the latest bill, signed into law last year and enacted on January 1, judges still can’t consider the potential dangerousness of a defendant. While 90 percent of arrests statewide are now subject to release without bail, violent felonies, sex-related charges, and some domestic violence charges are still subject to cash bail. 

“These reforms are a very incremental change — New York State did not get rid of cash bail. It’s still applicable to almost all violent offenses,” Cumberbatch said. “And for someone with means, almost nothing has changed.”

Across America, pretrial detention increased 433 percent from 1970 to 2015, according to a 2019 Vera Institute of Justice report. About two-thirds of people currently in jail have not been convicted of a crime. A 2017 City University of New York report found New York City arrestees who were detained before their trials spent an average of 13-17 days behind bars. But some stay much longer — like Kalief Browder, whose tragic story was an inspiration for the law. Because he couldn’t make bail, Browder spent three years at Rikers Island without ever being convicted of a crime, two of those in solitary confinement. Two years after he was released, he died by suicide.

People of color are disproportionately represented in New York’s prisons and jails: More than half of those incarcerated are black, although black people represent just 16 percent of the state’s population. And a 2019 analysis by antipoverty nonprofit FPWA found that “as poverty rates increase, jail incarceration rates increase in New York City community districts.”

In a system where if you can afford to pay bail, you can walk free, even critics of the new law agree that those who are detained are overwhelmingly poor people. 

John Flynn, the district attorney in Erie County, which includes Buffalo, said his office has been operating under a policy for the past year and a half in which prosecutors refrain from asking for bail in the majority of misdemeanor cases with a few exceptions, a policy that cut the number of people in jail pretrial by almost 50 percent, he says. “The main reason was the disproportionate economic realities — you have two people charged with the same offense, and one can afford to bond out and one can’t, and that’s just fundamentally unfair,” Flynn said. 

But Flynn, who is vice president of the state and national district attorney associations, said the new law goes too far. “My attorneys are no longer able to argue, to point out to a judge, ‘Hey Judge, there’s a good reason to why you should put bail,’” Flynn said. “And the judges, who are elected by the people here in New York State, they now have no discretion at all.”

Flynn said the law should be amended to include a public safety component similar to the bail reform law passed by New Jersey, which uses an algorithm to predict the likelihood of a defendant to commit further crimes. “Whether or not the person is a danger to himself or another person or society in general — I think a discussion needs to take place on that,” Flynn said.

But proponents of the new law argue that it’s that judicial discretion that resulted in huge numbers of poor people being detained pretrial, and that same discretion also allows for racial bias. The predictive algorithms, too, have come under fire for furthering racial bias. A 2016 ProPublica investigation found that the algorithm in Broward County, Florida, that was used to predict the likelihood of a defendant to commit future crimes “was particularly likely to falsely flag black defendants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants.”

Erin George, the civil rights campaigns director for Citizen Action of New York, said that these conversations about public safety are missing a critical segment of the public. “We have to stop talking about public safety as if the safety of black and brown communities who are targeted by discriminatory pretrial laws and policing, and then forced into the most violent places in the United States, as if their safety doesn’t matter in this conversation,” George said. “Our conversation has to include these people.”

The bail reform movement has produced positive results in nearby New Jersey

What’s happening in New York is part of a larger wave of bail reform sweeping the country. California became the first state to abolish cash bail in 2018 after an appellate court ruled the practice unconstitutional. But after a successful campaign by the bail bonds industry, the law is on hold until California voters take up the issue later this year. Meanwhile, Harris County, home to Houston, has done away with cash bail for misdemeanors after a federal judge ruled the practice unconstitutional, and a similar lawsuit is pending for the felony courts there. Other lawsuits have been filed in states and counties around the country. 

New Jersey’s reforms, which happened in 2017, have seen promising results. Not only has there been a 40 percent drop in the number of pretrial detainees, data also shows that since the new law went into effect there was no spike in crime, and people who were released were just about as likely to show up for their court dates. 

This data is heartening for supporters of the New York law, who hope to see similar findings in their state. But Senate Republicans plan to bring a bill to repeal the law in the current legislative session. And with even Democrats, especially in swing districts, calling for some modification of the new law, it’s likely that potential changes to the bill will be heard in the Democrat-controlled House as well. 

But some, like Dan Quart, a New York state assemblyman who is running for Manhattan district attorney next year, said the right move is to stay the course. “I’m hopeful that we would not consider rolling back reforms 12, 15, 20 days into those reforms,” he said. 

“It was a step in the right direction,” Quart said. “It was not the ultimate solution, which is to eliminate cash bail completely.”

As New York temperatures dropped in early December, a public defender in Brooklyn tweeted a request for warm clothing for those incarcerated on Rikers Island. “It’s freezing outside. It’s even colder on Rikers,” Scott Hechinger wrote to his nearly 70,000 followers. “Right now, people are walking around in the blanket they’re provided. Literally shivering. Guards open windows to spite them.” 

Hechinger asked for help filling an Amazon wishlist of thermal underwear, socks, and undershirts — items that have been approved by the NYC Department of Corrections for use in city jails. These are also items many would assume the Department of Corrections would provide for incarcerated people themselves. 

When asked about the need for warm clothes, Peter Thorne, the deputy commissioner of public information at the New York City Department of Corrections, told Vox that the agency works to ensure people in its custody don’t get too cold. “We take numerous precautions including taking regular temperature readings, providing blankets if needed, and even relocating individuals if a cold temperature situation can’t be quickly resolved,” Thorne said. “The Department takes all complaints about conditions inside our facilities seriously.”

But Kelsey De Avila, the jail services project director at Brooklyn Defender Services (BDS), where Hechinger works, said that their clients are telling a different story. BDS started its clothing drive in 2016 after clients said they were freezing in jail and weren’t getting issued the warm layers they were requesting. 

“Every year we hear the same complaints. In the winter people are cold, they aren’t getting the required warm clothing that the DOC is supposed to provide for people, the sweats and blankets,” De Avila said. “[Our clients are saying] the heat hasn’t been turned on, windows are broken so cold is coming into the units, and when they ask for the clothing, they have to beg or ask multiple times.”

The drive has been increasingly successful each year, with people around the country donating items to New York City jails. So far, hundreds of orders have come in since Hechinger’s tweet. But De Avila stresses that it’s just a band-aid on the problem of inadequate temperature control in jails and prisons. 

Because the US system of prisons and jails is so vast — including 50 state prison systems, the federal prison system, and nearly 3,000 jurisdictions that include cities, counties, and Indian reservations — and because there are no federally mandated laws on temperature control, American prisoners are exposed to a wide range of conditions. Even at the state and local levels, there are few laws around this, leaving incarcerated people at the mercy of the courts to implement protections for them. And if the courts won’t provide these rights, incarcerated people have to rely on the goodwill and donations of concerned citizens to stay warm through the winter. 

But in many jails, outside charity isn’t even allowed. The lack of warm clothes is just one of the indignities many incarcerated people face in a bureaucratic system that isn’t set up to shelter them.

America’s prisons are often too cold in the winter, too hot in the summer

Last winter, more than 1,600 incarcerated people in a Brooklyn federal prison spent about a week with “limited heat and power” as outside temperatures neared zero degrees Fahrenheit. The Bureau of Prisons, which oversees the Metropolitan Detention Center (MDC), told the New York Times that there was a partial power outage but that cells did have heat. Ultimately, it blamed the outage on the utility company Con Edison, which denied responsibility. 

In response to the report, protests were staged outside the facility in Brooklyn’s Sunset Park neighborhood. The media attention, coupled with the urging of local politicians, resulted in heat being restored — but it took more than a week to do. 

De Avila said that due to the policies at MDC, Brooklyn Defender Services couldn’t even deliver warm clothes from its drive to the MDC prisoners. And it’s clear, De Avila stresses, that this problem is not limited to one specific instance — people detained in ICE custody in New Jersey jails also complain of the cold and are also not able to receive the items. “We have to go through approved vendors, which are marked up astronomically,” De Avila said. (An ICE spokesperson told Vox that “allowing such donations could present a security and/or health risk to those housed in ICE’s care,” but that standards do require ICE to provide weather-appropriate clothing.)

The problem of frigid prison conditions is ongoing throughout the country. In January 2018, the Texas Tribune reported that more than 30 prisons in the state had inadequate heating during a cold snap. And just last month, incarcerated people in Dauphin County, Pennsylvania, told the PA Post that their cells were so cold they could see their breath, something the outlet says happens at around 45 degrees. “It’s a recurring issue every winter,” De Avila said.

So, too, is the opposite problem — extreme heat inside prisons during the summer, which has received more attention in recent years in part because of heat-related deaths of prisoners. At least 23 incarcerated people have died due to extreme heat since 1998 in Texas prisons alone. A report from the Prison Policy Initiative found that 13 states with hot summer climates don’t have universal air conditioning, and a 2015 Columbia University report notes that, in light of climate change, the problem is getting worse. 

And yet this isn’t a new problem. A 1991 Human Rights Watch report found that prisoners from New York to Tennessee to Florida raised concerns about temperature control. “In almost all institutions Human Rights Watch visited, we heard complaints about the temperature,” the report stated. “At Starke [in Florida], many inmates complained about heat in the summer and cold in the winter; the same concerns were voiced by prisoners at the Tennessee State Penitentiary in Nashville. Most institutions we visited, including those in hot climates, were not air conditioned.”

De Avila said that any time a client complains of frigid conditions, or when a client shows up to court without the standard-issue coat they are supposed to be given when leaving the jail, their lawyer helps them to file a complaint. “For every person who came to court without a coat, we’d send an email, and it was just one after another,” she said. It would take this nudge for a coat to be provided.

The New York City DOC maintains that temperatures are monitored regularly in its jails and prisons, and that the warden is required to be notified when temperatures dip under 68 degrees. Maintenance is required to respond, providing blankets and hot beverages, and incarcerated people are moved if the problems can’t be resolved, the DOC said. If there are problems, grievances can be filed by prisoners, or they can call 311 to report the complaint.

However, like with MDC last winter, addressing major issues often comes only after media attention or activism — and that results in quick fixes, instead of permanent change.

Facilities have patchwork guidelines and few specific laws on temperature regulation

There are no federal laws mandating temperature control in prisons and jails. An FAQ on the website for National Institute of Corrections (NIC), the federal agency intended to support corrections agencies across the country, gives a complex answer to the question of ideal temperature. “Not everybody ‘feels’ temperature or comfort the same,” it begins. Still, NIC requires that the warden and the assistant commissioner be notified when temperatures drop below 68 degrees in all areas and are above 80 degrees in specific areas. 

A Federal Bureau of Prisons operation manual from 2016 states that temperatures “will be targeted to 76 degrees Fahrenheit in the cooling season and 68 degrees Fahrenheit in the heating season,” but adds that “due to issues such as the age of the cooling and heating systems and the inability to control temperatures in individual spaces, occupants may experience a range of temperatures in their space that is a few degrees on either side of the targeted set point.” 

Alexi Jones, a policy analyst for the Prison Policy Initiative who authored the air conditioning report, said there is a lack of federal, state, and local legislation around temperature control in jails and prisons, leaving much up to the discretion of corrections officials. “There may be guidelines, but there are very few actual laws that regulate it,” Jones said. “Between county jails, state prison systems, and federal prison systems, it’s a very patchwork system of regulations on temperature control.”

In Texas, for instance, county jails must be kept between 65 and 85 degrees, but that requirement does not extend to state prisons. A recent bill to require state prisons to implement those guidelines was scrapped in favor of a “cost study” in 2019; the legislature won’t get another crack at passing the law until it meets again in 2021. In West Virginia, temperatures “must be maintained appropriate to the summer and winter comfort zones with consideration for the activity performed” — without specifying what those comfort zones are. Alaska calls for temperatures between 65 and 85 degrees “when feasible.” 

Loose guidelines are often not enough to ensure proper treatment of incarcerated people, Jones said, especially within a broader culture of prisoner mistreatment. “When people think of the cold and heat in prisons, they may not realize how little freedom incarcerated people have,” she said. “If you want an extra blanket, that’s a request you have to put in that may or may not be denied. Just the most basic things are not options that are available a lot of the time.” 

And, of course, not every jail or prison in America is supported by an Amazon wishlist. For incarcerated people around the country, access to warm clothing, as well as the quality of other necessities such as education and medical care, is largely dependent on the facility in which they’re housed. “They are so dependent on the prison or jail they’re in to have their basic needs met — and it feels more astonishing that jails and prisons aren’t providing [warm clothes or blankets] because people in jails prisons have no other option,” Jones said.   

These types of requests typically fall to corrections officers, who have a large amount of discretion in dealings with incarcerated people. Few are punished for these kinds of withholding behaviors, and so there is little incentive for them to provide the things prisoners request unless there is a lot of attention on a particular case. 

So far, advocates have pursued lawsuits to earn rights for prisoners that legislation has failed to ensure. In 2017, for instance, after a protracted battle, a federal judge ruled that Texas violated the rights of a class of plaintiffs housed in the William Pack Unit, which regularly topped 100 degrees. The state agreed to keep temperatures in the Pack Unit at below 88 degrees; inmates in other Texas units are now suing in similar cases. Still, in September, a federal judge threatened to put state officials in sweltering cells themselves for failing to implement the judge’s order for air conditioning in the unit in a timely way. 

In New York City, a lawsuit regarding the substandard conditions in jails in the 1970s led to the creation of an independent monitoring committee, supervised by a judge, to ensure conditions are livable in the city’s jails. In 2008, after the Department of Corrections moved to terminate the order, which in part governs the treatment of “heat sensitive” prisoners and their right to air conditioning, US District Judge Harold Baer ruled to keep the order in place, noting that the jails had been routinely found to be noncompliant with the terms of the decree. In a paper that year for the New York Law School Law Review, Baur said the courts have a duty to step in where other branches of government aren’t. “In such instances when the legislature and the executive are unable or unwilling to insure minimal constitutional rights,” Baur wrote, “that judicial intervention has been and should continue to be a viable solution.”

And while there are no federal laws about regulating temperatures, federal courts have found that extreme temperatures can be a violation of prisoners’ rights to be free of cruel and unusual punishment, such as in a 1991 case where the Supreme Court recognized that low cell temperatures and a failure to issue blankets could be an Eighth Amendment violation. Federal courts have also recognized temperature control as part of pretrial detainees’ rights to due process, such as in a case in Arizona where a federal appeals court instituted federal oversight of Maricopa County jails to ensure livable conditions, including livable temperatures.

Revisiting the MDC incident in Brooklyn, the Bureau of Prisons released a report in September that called the weeklong power outage during a polar vortex “a media crisis.” It made recommendations, including upgrading the heating systems and making warm-weather clothes standard-issue. But the warden, Herman Quay, who had misled reporters and politicians about the extent of and the reasons for the heat and power problems, has since been promoted to oversee twice as many incarcerated people in his new post in Pennsylvania, the Intercept reported. No laws have since changed regarding temperature controls in federal prisons. 

In the absence of systemic change, grassroots advocates will continue agitating for new laws, and organizations like Brooklyn Defender Services will continue to solicit donations of warm clothes from well-meaning people around the country to fill the gaps.

“It’s so heartwarming and overwhelming, but also, we really shouldn’t have to be doing this,” De Avila said of the clothing drive. “The department has a responsibility to ensure people are provided with humane conditions, warm clothing. They shouldn’t have to beg for certain basic essential items.”