Lost Opportunity, Lost Lives

At first, Anthony Eaton ignored the moaning. He was twisting his budding dreadlocks in the bathroom of 1000 pods, a unit at the Deerfield Correctional Center in Capron, Virginia, when he heard a noise coming from a shower stall. In prison, Eaton said, you don't investigate such things.

"It was a strange moaning," he said. "I didn't want to look back there. But after it went on for like, three, four, five minutes, I just said, 'Let me look.'"

Deerfield is a geriatric facility, housing mainly men over 55, and the pod was a red zone at that time, being used to quarantine about 100 men who had recently tested positive for COVID-19. It was around 9 p.m. on Sept. 27, 2020, and many of the men were in the dayroom that adjoins the bathroom, watching the Green Bay Packers Play the New Orleans Saints.

When Eaton walked around to the showers, he found 67-year-old Askia Asmar face down on the floor. His breathing was slow and labored, and there was a puddle of blood beside his face. Eaton ran to the officer on duty, who called medical staff. But when the doctor arrived, he stood outside the pod, refusing to come in, according to several men who were in the pod that night. Many of them pleaded doctor through windows and plexiglass slats in the door that Asmar needed help.

"People were yelling at him and fussing at him, but he never came in," said Eaton, 55.

Zonnie Simmons, 56, was also in the pod that night, and said he was enraged by the doctor's refusal to help: "He never even tried to attempt to come in and help this man that was dying on the floor."

Eventually, prison staff arrived with a nurse, and they and other men in the pod loaded Asmar onto a stretcher. The men were later told he'd died from COVID-19. Asmar had lung and liver cancer, diabetes, and hepatitis C. He had about 10 months left until his mandatory release date but could have been released even earlier, as he had a parole hearing scheduled for December 2020. He'd applied for the Inmate Early Release Plan in June 2020, under which the Virginia Department of Corrections (VDOC) considers early release for those who are close to their release date and at risk of serious complications from the coronavirus. Asmar's request was denied.

Asmar was one of 19 men to die at Deerfield during an outbreak in which 837 of the 925 men incarcerated at the facility were infected. Several men at the facility allege that the number of COVID-19 deaths the VDOC has documented is higher than that.

In an affidavit given to the ACLU 11 days before his death, Asmar said: "Two people from my building died in September and two in the building I was moved to on September 11 also died; prison staff is blaming their deaths on other medical conditions, but I am sure it is COVID." VDOC Director of Communications Lisa Kinney did not answer any questions about Asmar or the claims made in this story by Asmar and the other men.

Eaton said he was so tired of all the death that he didn't return to the bathroom after he alerted the officer that Asmar had collapsed.

"I didn't want to see him," Eaton said. "There was a guy who died like a month before that. And I found him. I just ain't want to see none of it no more."

Initial reports about the coronavirus noted that older adults and those with comorbidities were most at risk of dying or having serious complications from the virus. Those in correctional facilities, where it is generally impossible to socially distance, were especially at risk. According to the Prison Policy Initiative, even 10 months into the pandemic, prison systems in 41 states were still operating at 75% or more of their capacity, with at least nine operating at over 100% capacity.

On Feb. 29, 2020, James Dillingham III, who is also incarcerated at Deerfield and was in the same pod as Asmar, wrote a letter to Virginia Gov. Ralph Northam with concerns: "The CDC has already said that places like prisons are high-risk areas where the virus can spread rapidly and would be quite severe. A geriatric facility where many are old or suffer with compromised health issues could have catastrophic consequences." Dillingham says he never received a response.

There are 148,815 people over the age of 55 in state prisons, according to the most recent data from the Bureau of Justice Statistics. The pandemic provided an opportunity to do what advocates, politicians - both Democrats and Republicans - and others have long recommended: Significantly reduce the prison population, in this case by releasing older adults and others most medically vulnerable to protect them from the virus.

Several governors said they would do just that. In April 2020, the Inmate Early Release Plan - Gov. Northam's proposal to release people in prison for anything other than a Class 1 felony or sexually violent offense, with one year or less remaining in their sentences - was approved. New York Gov. Andrew Cuomo also announced in April 2020 that the state would consider releasing people over 55 who had 90 days or less remaining on their sentences and whose convictions were not violent felonies or sex offenses.

But lawyers and advocates say few older people have been released early due to the pandemic. The Marshall Project filed Freedom of Information Act requests to get data from several states showing how many people over the age of 55 had been released early due to the pandemic. The New York Department of Corrections and Community Supervision (DOCCS) did not provide a breakdown for the number of older people who had been released early, but a spokesperson said that to date it has released 3,093 individuals who were serving sentences for nonviolent, non-sex offenses and were within 90 days of their release date. From April 20 to May 14 of last year, 177 people over age 55 who met those criteria were released. The Virginia Department of Corrections has released 1,112 of the 3,155 people it considered for early release. VDOC did not provide data broken down by age.

The stipulation that only those incarcerated for nonviolent offenses should be eligible for early release excludes many older people, who have often spent several decades in prison precisely because of the long sentences they received for committing violent crimes. Between 1993 and 2013, more than 65% of the people in state prisons who were 55 or older were serving time for violent offenses.

But states are not even releasing those serving sentences for nonviolent crimes, according to experts. Asmar was convicted of a nonviolent crime, had terminal cancer and less than a year on his sentence, which would have made him a model candidate for early release, said Eden Heilman, Legal Director of the ACLU of Virginia. But in Virginia, the VDOC has the discretion to decide who qualifies for early release by using a recidivism risk assessment tool called COMPAS - the Correctional Offender Management Profiling for Alternative Sanctions. Studies have found that COMPAS is not a reliable predictor of recidivism risk, and produces racially biased results. And studies show that older people are less likely to reoffend.

Heilman said that someone who is incarcerated for a nonviolent offense like forgery or selling drugs could still be considered ineligible for release if COMPAS shows they're likely to commit those crimes again if they're released, even if they've been in prison for decades.

The issue, says Jose Saldana, director of Release Aging People in Prison (RAPP), is that the system focuses on punishment and fear based on what people might have done decades earlier rather than consideration that people can change.

"Elders are needlessly dying in prison, when they could be safely returned back to their families and home communities," says Saldana, who himself served 38 years in New York State prisons. "The only thing that stops a 75-year-old man who has been imprisoned for almost five decades from being released is vengeance. That's the only thing. It's not justice; it's vengeance."

Dillingham, 52, followed his initial warning with over 20 additional letters to the governor and other officials. A former Air Force Sergeant, he's used to getting things done. On March

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