By Seth Rubinstein, J.D.
At the start of the coronavirus pandemic, many hoped and expected that the pandemic would serve as a natural catalyst for decarceration. After all, overcrowded prisons and jails pose serious danger for the rapid spread of COVID-19. Since then, most jurisdictions have taken some steps to decarcerate, but such steps have only put a tiny dent in mass incarceration in the US, and have themselves faced an uphill battle. These efforts hold valuable lessons for the challenges and opportunities for decarceration even after the pandemic ends. As institutional inertia, lack of accountability, and lack of political willpower have posed challenges for serious decarceration in response to the coronavirus, future efforts will need to address these issues to achieve more dramatic change.
I. Why are prisons and jails so important during the pandemic?
Prisons and jails have all the ingredients for a high risk of dangerous coronavirus spread. They are dense and overcrowded, with inmates generally unable to socially distance. They lack adequate medical resources and sanitation (often, inmates need to pay for personal soap). They have high turnover; jails in particular are transitory for many inmates awaiting trial, and guards enter and exit daily. Finally, incarcerated persons have a higher rate of many pre-existing health conditions. Incarcerated people have heart-related problems at more than 3x the rate of the general population, and asthma at a 46% higher rate, according to the Bureau of Justice Statistics. Taken together, these factors predictably put people inside prisons and jails at high risk for rapid spread of coronavirus.
Many observers pointed out in the early weeks and months of the pandemic that prison and jail populations deserved serious attention, and that the pandemic could serve as a natural experiment in rapid decarceration — precisely the catalyst that change-resistant courts and correctional facilities needed. The U.S. incarcerates a higher portion of its citizenry than any other country on earth, and people are incarcerated for a wide range of reasons: close to half a million are not convicted of a crime but may be held without bail, and close to half a million are incarcerated purely for non-violent drug crimes. 91% of Americans support some criminal justice system reform, and 71% of Americans support reducing prison populations. And given the extraordinarily high costs of incarceration, and the additional burden on the healthcare system posed by inmates requiring hospital services, it seemed there would be enough political willpower to drive change.
While there has been some decarceration since the pandemic, the past eight months have suggested that it remains an uphill battle. Institutional inertia, lack of political willpower, misinformation and misperceptions, economic influence of the prison-industrial complex, and the “out of sight, out of mind” issue are a few of the problems that have inhibited more dramatic decarceration.
II. Decarceration Lite
According to the Vera Institute of Justice and the UCLA COVID-19 Behind Bars Data Project, since the pandemic began, jail populations have decreased for COVID-19 related reasons by approximately 200,000 and prisons by about 63,000. This decrease is material, but still small in light of the context. First, with about 2.3 million people incarcerated in the U.S., this pandemic-related reduction represents just about 11% of the total incarcerated population. For reference, this reduction does not even match the 321,000 Americans detained in jail without any conviction while awaiting trial for non-violent charges. Second, not all of the reduction came from actually releasing people – most of it came from simply slowing the increase of new admissions, namely by city-led efforts to reduce new arrests for petty offenses and choosing not to prosecute for certain non-violent crimes.
There is a troubling lack of urgency despite concerning conditions within prisons. A survey done by Brigham and Women’s Hospital researchers found that 93% of respondents in prisons did not have sufficient access to soap, 94% are unable to regularly maintain six-foot social distancing, and 90% report insufficient disinfection of high-touch surfaces. Myriad reports show guards ignoring complaints by inmates experiencing coronavirus symptoms. Only half of states require guards to wear masks.
Predictably, these conditions have resulted in above-average rates of coronavirus spread — and fatalities — within prisons and jails. Currently, there have been at least 197,659 reported cases of coronavirus within prisons and jails, an infection rate as much as five times the national average. At least 1,454 of these have resulted in death. Adjusting for sex, race and age, studies have found the mortality rate in state and federal prisons is between two and three times that of the general population in the U.S.
In light of this, why have courts, politicians, and correctional facilities failed to take more aggressive steps to combat coronavirus in prisons and/or to release people more rapidly?
One reason is the institutional inertia within the Bureau of Prisons (BOP), the national agency responsible for overseeing prisons. Inertia to incarcerate is just “baked into the system” for the BOP, according to Ronald Sullivan, Professor and Director of the Criminal Justice Institute at Harvard Law School. As part of the Department of Justice, the BOP’s bias towards incarceration has also influenced prosecutors, who have “nearly absolute and unreviewable power” to decide whom and how they charge.
Political willpower is another challenge. People in jails and prisons cannot vote, historically are a politically unpopular constituency, and may be seen as “out of sight, out of mind” for much of the general public. As such, political leaders may feel they have little incentive to stick their necks out to protect their rights and their health, especially if doing so runs the risk of hurting their image among voters. This risk is exacerbated by widespread yet unfounded fears that releasing incarcerated persons could lead to a spike in crime. It is also exacerbated by the economic influence of the prison-industrial complex, namely the entrenched interests of private prisons and bail bond companies that stand nothing to gain and everything to lose from decarceration.
Rikers Island — New York’s infamous jail complex — released 1,500 prisoners at the height of the coronavirus pandemic in March/April. Of those, one individual was rearrested for murder. Over the same timeframe, New York has, like many cities, seen a spike in violent crime during the pandemic, likely owing to coronavirus-related unemployment and lockdowns. Even though such spikes are not attributable to those released early from Rikers, common misperceptions and lack of awareness can lead many in the general public to believe otherwise. Fordham University’s John Pfaff described it bluntly in July: “Governors are making a very calculating decision that it’s probably better for them politically for 10 men to preventively die in prison from COVID-19 than for one of them to do something wrong if he’s released early.” Politicians do not want a Willie Horton incident to happen on their watch, and this fear drives them to be exceptionally risk-averse in authorizing early releases.
These factors have compounded to make early releases exceptionally difficult to get granted. Reports surfaced in May that, despite the DOJ’s stated goal to release as many people as possible, the Bureau of Prisons circulated internal requirements making it even harder for prisoners to successfully petition for early release in all but 98% of cases. Disproportionately, the cases that do succeed are of prisoners with access to advanced legal help, such as Trump’s former lawyer, Michael Cohen, who was recently released from prison after serving less than one-third of his sentence. Compassionate release, a process generally designed for inmates facing terminal illness, is not designed for mass releasing, as has been evident in the tiny percentage (1.5%) of applications that have been approved.
Moreover, requirements for transparency and data reporting vary widely jurisdiction-to-jurisdiction, making it notoriously difficult to monitor what corrections officials are really doing. Nonprofits and advocacy groups like the COVID Prison Project, UCLA COVID-19 Behind Bars Data Project, Marshall Project, and Prison Policy Initiative have helped track and report on what is — and is not — being done.
III. Lessons and Actions
There are many ways to improve the situation, both for the remainder of the coronavirus pandemic and thereafter.
Accountability for decision-makers
For the Bureau of Prisons and political leaders to change their response to this crisis, they need to be held accountable. Professor Ronald Sullivan of Harvard notes that lawsuits against the DOJ and BOP for preventable fatalities that happened on their watch can generate economic consequences for their bad policies and incentivize them to adjust their policies. Political solutions, such as congressional hearings for BOP leaders, can also help drive accountability for officials.
Accountability through the courts is also possible — but difficult. Courts of Appeals could reverse the decisions of judges who did not pay adequate attention to COVID-19, but this is difficult owing to the highly deferential standard given to judges for factual determinations.
Yet another form of accountability is the media: critical op-eds and social media posts can help judges, governors, or BOP leaders feel some pressure to act.
More aggressively increase releases and decrease admissions
Judges, Departments of Corrections, and governors can systematize the early release process so they can release more people more quickly. The standards for releasing people can be shared transparently with the public. Nonprofits, advocacy groups, and lawyers can continue to help pressure officials to make this happen.
At the same time, perhaps the lowest hanging fruit is for jurisdictions to double-down on efforts to decrease the number of new admissions. The Prison Policy Initiative found this summer that “[f]or the most part, states are not even taking the simplest and least controversial steps, like refusing admissions for technical violations of probation and parole rules, or releasing people that are already in confinement for those same technical violations.” These sorts of changes require little effort, take no cost (in fact, they save money), and should be politically uncontroversial. Greater media and public spotlight on prosecutors and judges who fail to adopt these commonsense measures can help drive change.
Education, data, and reframing the narrative to address misperceptions and fears
The fear of a Willie Horton incident has paralyzed many politicians. As such, addressing the misinformation and misperceptions around recidivism will be crucial for politicians to feel they have the political cover to advocate for early release, and for the general public to signify they support such efforts.
Education and data can help. Judge Nancy Gertner, retired federal judge and Senior Lecturer on Law at Harvard, emphasizes that educating the public through the press and social media will be needed to combat misinformation on the risks of early release. For instance, many Americans may be unaware that the vast majority of incarcerated individuals are incarcerated for non-violent crimes, and additionally might not understand the ways in which imprisonment can ironically have criminogenic rather than deterrent effects. Intisar Rabb, Professor of Law at Harvard Law School and an expert on criminal justice, believes that data can help drive better decision-making: data science methods, when carefully employed, can be used to tie criminal justice policies to outcomes, and to dispel misperceptions about reoffending rates among those released. However, the data must be used thoughtfully and carefully. Current criminal justice data reflect the racial inequities and procedural failures that have been baked into the system for years. To avoid the risk of perpetuating those very same problems, data must be contextualized and evaluated along with outcomes. Additionally, Professor Ronald Sullivan emphasizes that in parallel to the data, the public needs to hear compelling personal stories. For instance, many people outside prison might not recognize that “quarantining” to avoid coronavirus is often impossible in a prison, and even if and when possible may mean forcibly being sent to a solitary confinement cell for 23 hours per day.
Reframing the narrative in terms of benefits for those outside prison can also help provide politicians the “political cover” they may feel they need to fight for the rights of those on the inside. For example, politicians can highlight that early releases, by reducing the spread of coronavirus within prisons, prevents additional burden on our already overburdened healthcare system and is encouraged by physicians. Cost can also be an effective framing. Incarcerating one individual at Rikers Island costs an astronomical $338,000 per year in 2019, an increase of 62% since 2014, meaning that early releases can free up large sums of money for healthcare, social services, and investments in local communities to combat the pandemic. For comparison, this is about 12x greater than the $28,808 that New York City spends per student. Political leaders could emphasize the cost to taxpayers of detentions plus the medical bills of detained individuals who become infected with coronavirus, as compared to the alleged benefits of detention. By reframing decarceral efforts more heavily in these terms, politicians might feel more empowered to fight for the rights of incarcerated citizens in a way that mitigates the risk of “soft on crime” accusations from their political adversaries.
How to get involved
The pandemic will be with us for a while. Governors, corrections officials, judges and prosecutors have the power to prevent needless deaths among vulnerable members of our society through taking commonsense, nonpartisan steps to decarcerate, while saving taxpayer and healthcare costs for all and regaining liberty for those deprived of it. If you’d like to get involved, consider supporting one of the many organizations driving this work.
Thank you to Judge Nancy Gertner, Professor Ronald Sullivan, and Professor Intisar Rabb for their helpful comments and conversations for this post.
Seth Rubinstein graduated from Harvard Law School in May 2022.
This post was originally published on the COVID-19 and the Law blog
