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Can the Pandemic Undermine Mass Incarceration?

The direction of public policy in massive bureaucratic states tends to create an almost inexorable momentum all on its own, and that momentum often overwhelms not only the conditions that created the policy but also the public welfare it purportedly serves. It is extraordinarily difficult to break this type of momentum, and public figures and political movements have both been known to dash themselves to pieces against the faceless wall of longstanding policy. American mass incarceration is this type of policy. What began as a response to public concerns about violent crime has grown over the decades into a complex web of entrenched interests that seem immune to all attempts at reform.

Historically speaking, established bureaucracies tend to be more vulnerable to sudden shocks than gradual change, with war, natural disasters, or financial crises often providing the impetus for reform. Activists who have been pushing for criminal justice reform believe that the systemic stress caused by the COVID-19 pandemic might provide a sufficiently large shock to generate change, and there is growing evidence that their hopes might not be in vain, as discussed in an article by Sarah Stillman in the May 25, 2020 issue of The New Yorker. (Note: This article summarizes some key arguments from The New Yorker story.)

Prisons and jails present intractable difficulties when faced with infectious disease. Jails tend to be crowded and poorly sanitized, and as prisoners cycle in and out of custody, any attempt to contain a contagious disease in almost impossible. Prisons tend to be less crowded and cleaner, but even though prisoner populations are more stable, staff come and go daily and chronically underfunded health services are easily overwhelmed.

Though social justice advocates have shown that mass incarceration imposes heavy costs on society’s failure to solve the causes of crime, heavy fiscal burdens, and the worsening of racial inequity, their protests have been largely ignored by policymakers.

The onset of COVID-19 has brought to light anew and more insistent concerns linked to mass incarceration and public health. An April 2020 study by epidemiologists and statisticians on behalf of the American Civil Liberties Union showed that without extreme measures, including rapid reductions in prisoner populations, jails and prisons could become infection hotbeds that might lead to the deaths of an additional hundred thousand Americans.

Mobilized by this threat, national legal organizations, community activists, faith leaders, and prisoners’ families began to agitate for mass releases across the country. They are focused on prisoners incarcerated for non-violent offenses, those nearing the end of their sentences, and the medically vulnerable. The COVID-19 Behind Bars Data Project at UCLA School of Law began to track these actions, and by mid-May they had noted over 500 legal filings and court orders as well as dozens of protests.

Remarkably, many of these efforts met with astounding success. San Francisco reduced its jail population by over a third, and California prisons have announced plans to release thousands. In Santa Clara County, California, the jail had released almost a thousand prisoners since March. Carson White, an attorney in the Santa Clara public defender’s office is hopeful these releases are the beginning of a trend. “This moment has flipped the script on mass incarceration,” he told The New Yorker. “It’s laid bare that caging huge swaths of our society isn’t necessary—it’s just convenient.”

There have been successes outside California as well. The New Jersey State Supreme Court authorized the release of up to a thousand prisoners from county jails. Federal prisons released thousands in April and by May had reached their lowest population in 20 years. In dozens of jurisdictions, minor charges have been dropped and warrants vacated for fines and other minor offenses. Patrisse Cullors, co-founder of Black Lives Matter, thinks this could be a pivotal moment “when we can collectively transform how our country relates to the most vulnerable,” The New Yorker reported.

Activists’ efforts have not met with universal success, and delays by prison officials proved costly as outbreaks in jails and prisons raged. When New York City finally relented and released 600 people from Riker’s Island jail, the infection rate there was already seven times higher than that of the general public. In Chicago’s Cook County Jail, which is fighting a judge’s order to socially distance, there had been 900 COVID-19 cases and 10 deaths by mid-May. At the same time, seven of the top 10 case clusters across America were in prisons and jails, including 2,439 cases at Marion Correctional Institution in Ohio alone.

Activists are hopeful that they can both build on their successes and use the consequences of inaction to drive for change. Thomas Framption, a public interest lawyer and lecturer at Harvard Law School, hopes the shock of the pandemic can fundamentally remake criminal justice policy. He calls this moment “a chance to build on the growing consensus that our current model for criminal justice needs to be entirely rethought, since it isn’t making our communities any safer or healthier,” according to The New Yorker