Since the start of the pandemic, our team’s research into the spread of COVID-19 in carceral facilities has been limited to the United States. The pandemic behind bars, however, has been a global crisis.

In early 2020, United Nations officials signed a statement urging Member States to take steps to protect the more than 11 million people in prisons around the world, but each country has taken its own, often insufficient, approach. Last month, the Global Health Justice Partnership of Yale Law School identified more than 130,000 confirmed cases of COVID and 1,000 among incarcerated people in Latin America alone. It is difficult to evaluate or estimate the scope of the crisis internationally, as many countries have been even less transparent than the United States.

In April 2022, a team of health and human rights experts issued a statement calling for UN agencies to make reporting data on COVID-19 mandatory and public for UN member states. Specifically, it argues that a global “pandemic treaty” currently being drafted should include obligations for states to collect and report this public health data on people in custody.

We spoke with Joe Amon, one of the authors of that statement who is also a consultant to Human Rights Watch and global health professor at Drexel University’s Dornsife School of Public Health.

What work have you done related to health in prisons, and more specifically about COVID in jails and prisons?

I started doing a lot of work on prison health while at Human Rights Watch, as head of the Health Division. There, we did a lot of work on HIV and Tuberculosis – looking at populations that weren’t being adequately served but were in countries that had a lot of donor money for HIV. We were also working in other detention settings like compulsory drug detention centers in Asia, as well as in the US, promoting access to substance use treatment in prisons and linking people to care coming out of jails.

During COVID, I was really interested in seeing if anyone was doing a good job [tracking COVID cases in detention]. I was looking globally, as much as I could, at different sources, sometimes from individuals and sometimes reaching out people who I knew were paying attention in different countries. As a former CDC Epidemic Intelligence Service (EIS) Officer, I was also trying to reach the CDC and trying to get them to do more in the US on this.

I then got linked up with the ACLU, who were starting to work on a few cases about COVID behind bars. I started by giving them general advice, and helping them know what’s reasonable and what’s not [in terms of what to ask for from jails and prisons], while also talking them through how to set up some really easy tracking systems for what they were seeing. I ended up writing many, many expert declarations for ACLU cases in jails and ICE detention centers across a number of states.

This frustration [about the lack of data tracking behind bars] led me to a few different sort of side projects. One was writing a short piece  highlighting that “more needs to be done faster” in both the US and in low-income countries where overcrowding in prisons is common and health care access is limited. Later, with colleagues from Human Rights Watch and with Edwin Cameron, the inspecting judge of the South African prison service, we published another article arguing that the pandemic treaty should explicitly talk about the need for disaggregated data from detention centers.

What motivated you to get involved with the crisis of COVID behind bars?

I was initially struck by the lack of creativity [in terms of government responses]. I mean the lack of any kind of public health response was one thing, but the lack of creativity in terms of thinking through what could be done for especially vulnerable populations was even more troubling.

You know, why can’t we think a little bit outside the box and do something strategic? They’re sending every college student home, and there’s all of these dorms that are empty. Maybe we could allow people who are unstably housed or migrant workers in overcrowded settings to stay in those dorms. It would protect those people, and maybe colleges could get some money, which would be of interest to them.

How have different countries done reporting COVID data for people in detention settings? Where does the United States fit in?

I would say that almost all countries I’ve seen have been not very good at it.

There have been specific cases, like in Thailand, where there was pretty effective advocacy, pushing the government to be more transparent about cases in detention settings. But in that example, the government started out weak, but became better at both doing testing and then reporting on cases that were occurring when pushed. And some countries in Europe have reported to the World Health Organization regional office. But otherwise, it’s been generally ad hoc.

I think the U.S. is in some places worse than its peers. For example, in county jails, because you get such a range of capacity levels and populations. Some county jails are also housing immigration detainees. So you get different categories of people in the jail facility reported in different ways and it can be difficult to get an accurate overall picture.

What data reporting obligations currently exist internationally? Do you think they’ve held up during the pandemic?

One of the frameworks of state obligations around prisons and health are the Mandela Rules, an international agreement setting basic fundamental protections for people in detention settings around the world. Those rules talk about things like people having a right to access care, right to access prevention, etc. But there isn’t a strong element in those Mandela Rules about reporting per se. And I think that’s a gap. The Mandela Rues are also not written with a pandemic in mind, but a more routine setting where people might need access to healthcare for everyday reasons. 

So I think that to really find the human rights argument for data reporting, you have to make the case that the failure to test and the failure to report data lead to other failures which are considered human rights violations – like failures to adequately separate populations that are infected from those that are not, and to treat the former and protect the latter. It leads to a failure for policymakers to understand the scope of the problem and to invest the funds needed to address the problem. And that can also lead to issues of racial discrimination.

But one of the challenges in making the human rights case for data reporting has been that there isn’t a very fundamental standard that says “All authorities in charge of detention centers have to do X, Y, and Z in terms of disease surveillance and reporting.” 

And that that’s where the pandemic treaty comes in?

The pandemic treaty is an idea that originated during the pandemic. A lot of it was about trying to ensure that low-income countries could access vaccines, diagnostics, and treatment, and not get skipped in line by rich countries stocking up.

But I think the pandemic treaty also has to be about pandemic preparedness, about improving systems of monitoring and systems of reporting. So we wanted to try to push to get the treaty to include a clear obligation for countries to not just report gross numbers of cases, but also to report cases broken down into categories, which included vulnerable populations.

And that shouldn’t be and won’t, if it’s adopted, just be about people in detention settings. For example, reporting by race is really important. Indigenous populations have been significantly affected in many, many countries.

There’s a need to kind of have that level of discussion and precision in the pandemic treaty.  The question is still open about under kind of what specific legal structure the pandemic treaty is going to exist. Will it be a binding treaty? Should it be something less than a binding treaty, like a set of guidelines and recommendations with smaller, but more explicit obligations stated, but no enforcement mechanism included in it? However it looks in this treaty, I’m hopeful that even if it starts out less than what is desirable, it’s something that could evolve and get stronger over time.

What is the status of the pandemic treaty for now?

There was one hurdle that was recently overcome, which was that the majority of states had to agree to move the treaty to the next level. So now there’s an international negotiating body. And back in July last year, they agreed to start drafting a binding treaty. So it’ll be over the next few months that drafts come out, and different member states will debate about what the content should be.

Are you optimistic that, whether or not the treaty advances and is ratified, the prospects for health data reporting – for COVID or other general health data – will be improved by the experience of the pandemic?

I think there’s a recognition that there needs to be better information and that states need to be monitoring and transparently reporting data. Whether it goes as far as I would like to see it go, I’m doubtful.

But the second question is, even if there’s agreement about how data should be disaggregated and reported, there’ll undoubtedly be states that ignore those requirements and refuse to report it. They’ll claim they don’t have the capacity to provide that information. The question then will be what the mechanisms will be to support those states in providing that data or sanction those states that prove unwilling.