The prisoners’ dilemma

It’s no secret that I’m not a big fan of prisons. They simply aren’t commensurate with the benefits they claim to bestow on communities. Prisons are remarkably expensive factories designed to exploit labor; they are stress experiments that test the already fragile mental health of their inmates. Far from preventing crime or rehabilitating people who violate laws, they are compassion-deprivation tanks administered by underpaid and overworked employees tasked with shepherding the behaviors of thousands with little resources or rational discourse. They are misguided vengeance warehouses that pay lip service to making people better while testing the human limits of lack of agency, steady fear of harm and general disregard. And whatever they are allegedly good for, they are especially bad at being good at any sort of medical care. 

I thought surely the pandemic will move the needle, and we’ll be forced to rethink keeping people locked up in a potential petri dish of contagion. And so in between puns and poems, I made a run on the Twitters to make a difference, to spark a revolution. I issued a relentless string of tweets about the callous indifference the State of Nevada and Gov. Steve Sisolak have shown people who are incarcerated during this pandemic. I said the governor needed to act quickly to get vulnerable, particularly older inmates out of prison. I overheated. I blew up, even as my tweets did not. The governor never responded; the tweets barely were retweeted; the slacktivism yell on social media echoed into the ether.

Still, I wasn’t entirely alone. 

In addressing the grave, unanswered challenges in the prisons during the pandemic, doctors and academics alike sounded an alarm that an outbreak in prisons (and jails) was highly likely and that the penalties to inmates, guards, transport officers, hospital personnel and ultimately every community in Nevada will be significant. Prominently, the ACLU and PLAN (two progressive organizations in Nevada that have done well in raising concerns) issued their calls for action, which were predictably ignored or marginalized. All of the experts indicated that in addition to surface cleaning and limiting potential encounters with the outside world and the (by now) ubiquitous precautions of masks, social distancing, hand-cleaning, etc., prisons must attempt to reduce populations in every thoughtful way before an outbreak makes such thinning measures irrelevant.

Gov. Sisolak remained unmoved. Seemingly, he didn’t want to look at “the data” or order the same sort of pandemic modeling the non-prison communities were getting. He never formed a task force specifically designed to create benchmarks and contingencies and didn’t make a single provision in the myriad of executive orders specifically addressing prisons. In many cases, he issued orders he knew could not be enforced in the prisons. He steadily gave updates on all aspects of the pandemic’s impact, but didn’t include prisons in his presentations until asked by the media. And when he was asked about measures including reducing the prison population as many experts recommend, he steadfastly refused to take any proactive measures.   

Ultimately, Gov. Sisolak revealed that he only is interested in two approaches to the impact of the pandemic on prisons – both predictably weak and ineffective, especially when compared to the thoughtfulness and fast-acting decision-making the governor applied to virtually every other component of our society during the pandemic. Here are the governor’s two approaches to prison in a time of pandemic in a nutshell:

(1) The Department of Corrections (and to a different extent the various local entities in charge of jails) has instituted cleaning and screening methodology deemed sufficient to address all concerns; and

(2) If anything further was needed, the Nevada Sentencing Commission could make recommendations.

I’ve been watching the prisons and these approaches for almost three months, now. Here’s what I’ve concluded. 

(1) The Department of Corrections acted quickly in putting in the minimal protocols designed to limit the spread of the virus, but officials had to know that however laudable it was, it would never be enough against a pandemic. The prisons knew that the likelihood of giving inmates personal protective equipment (PPE), or even hand sanitizer, would be extremely limited and that social distancing would be impossible. As such, they acted in a way to buy time for the prisons to develop internal, opaque policies to isolate and quarantine every single person who exhibited any symptoms of COVID-19 while keeping testing of inmates to a bare minimum. I sum up this approach as the State literally praying that there wouldn’t be a demand for widespread testing, or calls for outside oversight of the protocols that were put into place, or an unmanageable amount of cases requiring hospitalization in order for the status quo of incarceration to be maintained; and

(2) Many additional recommendations are needed for an approach parallel to every other sector of our community response to COVID-19, but the Nevada Sentencing Commission is not the entity best equipped to make those recommendations. Basically, it’s a legislatively created, partisan group of stakeholders tasked with a completely different set of goals that are unconnected to a medical health crisis. This commission was designed and assembled to offer recommendations about the fairness of the existing sentencing structure that has led to Nevada being in the top tier of per capita incarceration rates in the United States. The commission does not include medical personnel, was not required to accept any of the evidence-based data about medical risks in prisons, and has many members (including judges, police, probations officers, Republican legislators, etc.) who have such strong opinions about the need to rally around the integrity of the prison system that they would do ANYTHING to not release a single inmate under ANY conditions.


Today, the number of guards and inmates testing positive for COVID-19 is poised to hit numbers that belie the “just pray” approach. Three months in, we’re finally testing much more of the population of people who are incarcerated. We’re up to 33 prison staff and 8 inmates who have tested positive, with the full results of the bigger testing push not fully back. The Department of Corrections is still being dicey on exactly what it’s doing in real time. And yet it’s almost too late to start releasing individuals. A cynic might say this was part of the plan all along.  As we go along in the new phase of re-opening some the outside world, we are just entering the conversation about what happens if that along with more testing reveals a spike in the prisons. 

And still, not a single inmate was on the June 17 pardons agenda (a vehicle for early release). And still, the governor is not freely wielding the sword of executive orders to address this crisis. Instead, he is trusting a prison system that lives in the shadows while tasked to deal with the pandemic.

They can’t.

Widespread testing will, in all likelihood, end the speculation (for better, or possibly for much much worse) of just how many inmates are infected. A plan for isolation and/or treatment will be devised. If it goes the way many think, people will get very sick or die. This is always the playbook for the most vulnerable — like the population of incarcerated people. 

Why the resistance?

I am reminded of the recent words of Washoe County District Judge Scott Freeman (a sitting member of the Sentencing Commission) when voting “no” against a proposal on April 29 to recommend a list of the most medically vulnerable, non-violent offenders be placed before the governor for even possible consideration of early release to avoid exposure to COVID-19. Judge Freeman said “…on behalf of the judiciary, we’re the ones who put the people in the prison, as a consequence, I’m opposed to the motion… I feel very strongly under the circumstances that the director of prisons, in his detailed analysis and answer to our questions, was very satisfactory to me. And that under the circumstances I feel him very much in charge, understands what should occur and, on behalf of the judiciary, we’re the ones that put those people in prison, and I’m not interested in letting them out without a reasoned, appropriate approach and that’s my recommendation is to leave it to the experts like the director of prisons.”

Those are his words, but here’s my take on what he’s signaling here. “We are super smart judges and we weigh sentences with exactitude so they should never be disturbed under any circumstances, but we get it, we can’t sentence people to perish in a burning building, so in order for me to not second-guess my own job, I am forced to trust the administrative bureaucrat who monitors the prison to consider any nuanced analysis of the Eighth Amendment – until I’ve been clearly shown that this person is not trustworthy.”  

The problem, of course, is assessing how on fire the building is. How much obfuscation and inmate hiding does it take for the director to lose credibility? When do you consider the prison’s lack of effective treatment for rampant Hepatitis, and other medical deficiencies over the decades? Because if you listen to the governor, the whole state needed to take (and still needs to take) COVID-19 so seriously that every other government building had to be closed down...just not the government buildings that happen to have inmates inside. 

And Judge Freeman was maybe the most restrained of his colleagues on the commission in discussing the reasons to not release inmates. Others invoked Jeffrey Dahmer, the Unabomber, a 65-year old who killed a Nevada Highway Patrolman and other completely irrelevant examples of the mayhem that some individuals commit on a society in support of the argument that we can’t let ANYONE out! This posture suggests that, even in a time of pandemic, adherence to a belief that every human who is in prison belongs there, for exactly the amount of time a judge decreed, and that the prison is a safe, healthy place to store these humans. This is obviously a vital stance to justify the so-called “justice” in criminal justice. Indeed, any attempt to suggest otherwise gets met with such hyperbolic resistance that it is deflected, derided and in the case of Nevada’s response to the pandemic, ignored. 

In the height of my Twitteranting on these topics, I went to the length of requesting specific data from the Department of Corrections in order to contextualize the narrative of “zero have tested positive” that was being promoted at the time; the same narrative the governor was relying on in order to not directly act. Knowing that very few of the almost 13,000 inmates in Nevada were even being tested, I felt transparency would be a better catalyst to action; the discrepancies between what was being said in public versus what was being communicated by the inmates, themselves, would hasten action.

In presentations available to the public, the newly appointed director of prisons stayed on point and related that he and his agency quickly instituted important protocols designed to curb the initial transmission and subsequent transmission of this virus.  Inmates, on the other hand, are saying correctional facilities are not stringently enforcing PPE requirements; those who are presenting any symptoms of the virus are merely being “red-tagged” and isolated instead of tested; and that in essence, people are getting sick and the prison is hiding them from the outside world so as to maintain the integrity of the narrative that keeps the governor out of it.  

The disconnect in versions of events is stunning. And it wasn’t made better when a prison spokesman got into it with a television journalist with a “who you gonna believe, me or a lying liar inmate?” non-answer.

So I asked for the numbers and, while I didn’t get every response I asked for, I did get a slightly deeper dig for what I wanted from the same spokesman. I told him I would be fair and point out the measures the prisons did take and how that was absolutely the right thing to do – but also that I would balance it with my perspective. Which is that we’re at the precipice of a new crisis coming from the prisons because the governor (nor really anyone in authority) has not been asking the right questions all along.


I wanted to know why there wasn’t more testing when the proclaimed threshold for testing was low. I was curious whether ANY of the people tested were showing symptoms or if they were intentionally focusing on possible exposures to keep the likelihood of positive outcomes artificially low.  What I learned was just that. That on the date of my request (May 7), only 44 inmates (way too few) had been tested, and of that, only 17 inmates (even fewer) had symptoms.  How did the governor not know this? And what about more relevant data that to date has still not been revealed, like how many inmates have complained of or been observed with any symptoms? Or, how many inmates have been put into isolation and how are they doing? 

Fast forward to early June, with a recent proclamation that we’re ramping up inmates tests, as common sense dictated all along. As a result, no logical person thinks the number of positive results isn’t going to increase — or that there weren’t more (untested) cases than reported all along. A plan will hastily be devised which I predict will simply require increasing isolation for sick people until they become so sick they need to go to hospitals, and then more prayer that it doesn’t get too overwhelming. Inmates will die. More corrections employees will get infected. The communities surrounding prisons will be affected. 

And yet, whatever comes next, it will be clear that our governor and the Department of Corrections could have acted far sooner, and should have been more transparent with what was going on in the prisons. That the meaningless narrative of “zero-positive to the public” for nearly two months was an intentional misdirection. Remember, the prisons didn’t identify the first confirmed inmate case of COVID-19, but rather made the unlikely claim that he had no symptoms before needing hospitalization; the hospital (not the prison) is where the test was conducted and that’s when the narrative so strongly cultivated began to unravel.  

What will be forgotten no matter what comes next is how foolhardy it was for the governor to oppose the release of anyone from prison during a pandemic – even those who have served all of their assigned time – because of his assessment that housing, job prospects and health care were dim on the outside, and that incarcerated people needed a plan for re-entry into society so they could survive in a modern times, and not re-offend, and not hurt more people and blah blah blah.

I cavalierly say “blah blah blah” not because he’s wrong that recidivism, job placement and health and safety plans aren’t important concerns, but because in adopting this rhetoric, Gov. Sisolak tacitly admits that the prison system and supporting systems don’t work.

All of which comes back to the original point: the Nevada prison system is inadequate, and especially so during a health crisis. We are now figuratively stockpiling humans in burning buildings for arbitrary amounts of time. Even if prisoners are sitting ducks during this pandemic, Gov. Sisolak has decided these Nevadans don’t matter as much as those of us who haven’t committed a crime. And at Wednesday’s pardons board meeting, a half-measure was approved — to create a list of older, vulnerable inmates who have served most of their sentences already for possible consideration at an unspecified later date — and so kick the can continues.

And with that perspective, we are all lost. For as Mahatma Gandhi famously said: “The true measure of any society can be found in how it treats its most vulnerable members.” 

I join in the prayer that an outbreak doesn’t spill over in the prisons to the often troubled humans in prisons, or to the guards who watch over them, or to the medical personnel tasked with protecting them, or any others along the chain of human contact in these dangerous pandemic times. But I fear no one is even listening, let alone retweeting.

Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.