Time for the Government to Show that it “CARES” about Individuals who are Incarcerated

 By Emma Rosen
Associate Editor, Vol. 26   

The Pandemic in Prisons - American Oversight

“The IRS’s decision to exclude incarcerated persons from advance refund payments is likely contrary to law…. Plaintiffs have established they are likely to be irreparably injured without an injunction.”[i]  Judge Hamilton, of the Northern District of California, gave hope to incarcerated individuals and their families by issuing an injunction to remediate that irreparable harm.  The injunction ordered the Government to provide stimulus checks from the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to eligible people who are incarcerated.  Judge Hamilton’s description of the applicable law and standards are explained throughout a forty-five-page opinion, culminating in an injunction to prevent the IRS from withholding stimulus checks from eligible individuals.  

Congress signed the CARES Act into law in response to the COVID-19 pandemic in order to distribute “Economic Impact Payments to American households of up to $1,200 per adult for individuals whose income was less than $99,000.”[ii]  The CARES Act itself says nothing about incarceration nor its potential effect on eligibility to receive the payment.  Instead, the CARES Act defines “eligible individuals” as “any individual other than,” a nonresident immigrant; a person who is claimed as a dependent on another person’s tax return; or an estate or a trust.  H.R.748 – 116th Congress (2019-2020) § (e)(3); 26 U.S. Code § 6428(d).  Initially, people who are incarcerated were on track to, and some did, receive CARES Act stimulus checks.  However, the IRS subsequently issued guidance on their website, under the “FAQs” section, instructing recipients who are incarcerated to return their payments.[iii]  The IRS did not cite any authority or law giving them the power to change eligibility from the original definition.  The CARES Act was drafted and signed into law by the legislative branch (Congress). The IRS, however, is part of the Executive branch.  Despite the fact that the stimulus check is framed as a tax credit, our system of separation of powers simply does not allow the IRS to change the eligibility requirements of a congressional act without going through the proper channels.

Withholding stimulus checks from individuals who are incarcerated has an inherently disparate impact on minority populations given the makeup of our prison system,[iv] and further harms individuals who have been living in one of the highest COVID-19-risk environments throughout the pandemic.[v] The class action plaintiffs’ attorney, Mona Tawatao stated, “[t]he Treasury Department’s theft of the CARES Act supplements that Congress intended get to people in need right away is not only illegal, but cruel to the people and families most harmed by COVID-19 and over-incarceration — Black, Latinx and Native people and people with lower incomes.”[vi]

In jails and prisons, it is nearly impossible to maintain the recommended six feet of social distance from other inmates.[vii]  Cells are typically 25 square-feet, meaning cellmates standing at opposite ends of their living quarters still would not be sufficiently socially distant.  The Legal Aid Society has reported that COVID-19 infection rates in New York City jails are more than double the rates of the city itself.[viii]  Other states, including New Jersey, Tennessee, and Michigan, have reported infection rates of over 10% of their Department of Corrections populations.[ix]  And these numbers are likely higher in reality due to a lack of resources relating to testing and reporting.  Further, jails and prison populations typically have a greater percentage of underlying health conditions, which can lead not only to an increased risk of contracting COVID-19, but also an increased risk of detrimental symptoms and lasting effects on health once contracted.[x]  Simply put, jails and prisons have put the individuals in their custody at incredible risk of both contracting COVID-19 and of suffering serious harm to their health as a result.

Given the risk that both states and the federal government are forcing upon those who are incarcerated, allowing them to receive their stimulus checks (and keep them) is the least that these individuals are owed.  We have already learned that COVID-19 can cause lasting health effects, such as long-term breathing problems, blood clots, strokes, seizures, and damage to the heart, among other organs.[xi]  People will need money to pay for medical care and health insurance. I am not pretending that $1,200 will make a dent in that future unknown bill.  However, the underlying principle of fairness mandates that when looking at the issue of who receives the stimulus check, those forced to endure high-risk conditions should absolutely be on that list.

The IRS now owes upwards of $100 million to over 80,000 eligible individuals who are incarcerated.[xii]  The 8th Amendment protects against cruel and unusual punishment.  U.S. Const. amend. VIII.  Many people in jails have not even been convicted of a crime, yet they are already being withheld their right to needed funds while also being subjected to a high-risk health environment.  Even those who have been convicted – regardless of the nature of the crime of  conviction – are protected by the Constitution and thus are unquestionably entitled to the CARES Act payment. The CARES Act can help to remediate at least some of the cruelty that individuals who are incarcerated are subjected to by virtue of their incarceration and limited ability to adequately protect themselves from COVID-19. In short, “The court’s order will bring them critical relief and some measure of justice.”[xiii]

[i] Scholl v. Mnuchin, No. 20-cv-05309-PJH, 2020 U.S. Dist. LEXIS 176870, at *53 (N.D. Cal. Sep. 24, 2020)

[ii] The CARES Act Works for All Americans, U.S. Department of the Treasury, https://home.treasury.gov/policy-issues/cares (last visited Nov. 15, 2020); The CARES Act Provides Assistance to Workers and Their Families, U.S. Department of the Treasury, https://home.treasury.gov/policy-issues/cares/assistance-for-american-workers-and-families (last visited Nov. 15, 2020).

[iii] Andrew Soergel, IRS Seeking to Clawback Stimulus Checks Sent to Deceased, Incarcerated, U.S. News & World Report (May 7, 2020, 3:12 PM) https://www.usnews.com/news/economy/articles/2020-05-07/irs-seeking-to-claw-back-stimulus-checks-sent-to-deceased-incarcerated.

[iv] Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, The Sentencing Project (Jun. 14, 2016) https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/.

[v] Aleks Kajstura & Jenny Landon, Since you asked: Is social distancing possible behind bars? Prison Policy Initiative (Apr. 3, 2020) https://www.prisonpolicy.org/blog/2020/04/03/density/.

[vi] Lieff Cabraser, Federal Judge Certifies Class, Orders Trump Administration to Stop Denying Pandemic Relief Funds to Incarcerated Persons, Lieff Cabraser Heimann & Bernstein (Sept. 24, 2020) https://www.lieffcabraser.com/2020/09/federal-judge-certifies-class-orders-trump-administration-to-stop-denying-pandemic-relief-funds-to-incarcerated-persons/.

[vii] Id.; Social Distancing, Center for Disease Control and Prevention (Jul. 15, 2020) https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.

[viii] COVID-19 Infection Tracking in NYC Jails, The Legal Aid Society https://www.legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/ (last visited Nov. 15, 2020).

[ix] Emily Widra, What do we know about the spread – and toll – of the coronavirus in state prisons? Prison Policy Initiative (Jun. 24, 2020) https://www.prisonpolicy.org/blog/2020/06/24/covidrates/.

[x] Kelsey Kauffman, Why Jails are Key to ‘Flattening the Curve’ of Coronavirus, The Appeal (Mar. 13, 2020) https://theappeal.org/jails-coronavirus-covid-19-pandemic-flattening-curve/?fbclid=IwAR1K9cf0ardpNwIfxtzjLlegqusQ4l_ZpY1MEuagMfcnqsttzMi5aGlKnCQ; Peter Wagner & Emily Widra, No need to wait for pandemics: The public health case for criminal justice reform, Prison Policy Initiative (Mar. 6, 2020) https://www.prisonpolicy.org/blog/2020/03/06/pandemic/.

[xi] Mayo Clinic Staff, COVID-19 (Coronavirus): Long-term effects, Mayo Clinic https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351 (last visited Nov. 15, 2020).

[xii] Shahar Ziv, IRS Must Pay $100 Million Worth of $1,200 Stimulus Checks, Judge Orders in Prisoners’ Lawsuit, Forbes (Oct. 5, 2020, 8:40 AM) https://www.forbes.com/sites/shaharziv/2020/10/05/irs-must-pay-100-million-worth-of-1200-stimulus-checks-judge-rules/?sh=4a8c84214e7f.

[xiii] Id.