COVID-19 and Prisons

As progressive prosecutors, we read “COVID-19 Exposes a Broken Prison System,” by Justin Berk, Alexandria Macmadu, Eliana Kaplowitz, and Josiah Rich (Issues, Fall 2020), with great interest. COVID-19’s rapid spread in prisons and jails across the nation has created epidemics within the pandemic. As the authors note, as of August, 44 of the 50 largest outbreaks nationwide have been in jails or prisons. In San Quentin State Prison in California, for example, in the course of less than two months the prison went from no cases of the virus to a 59% infection rate for those incarcerated there.

In San Francisco, our office has worked hard with our justice partners to prevent a similar outbreak from occurring in our county jails. We listened to the advice of public health experts early in the pandemic and worked quickly to decarcerate to allow for the necessary social distancing inside our jails. We carefully reviewed every person in custody to determine if we could safely release them. Consistent with our office’s policy in ending money bail in San Francisco, we did not seek incarceration for nonviolent offenses. We early released people who were close to completing their sentences, and we identified cases where we could offer plea bargains without jail time. We worked with probation to avoid jailing people for technical violations of supervision. We coordinated with the public defender’s office to help secure safe housing and reentry support for people leaving custody. And we delayed the filing of charges when there were no public safety concerns necessitating immediate action. On March 17, the day San Francisco’s mayor announced a shelter-in-place order, the city’s local jail population was around 1,100 people; by late April our jail population dropped below 700—the lowest number in recent history.

But, unfortunately, the story isn’t over. Our numbers have been creeping up again. It has become all too easy to feel complacent about the virus. With courts reopening and many businesses resuming some semblance of normalcy, the sense of urgency many of us felt back in March and April has dissipated. That is dangerous.

With the recent, rapid surge in cases, now more than ever prosecutors across the nation have a duty to work toward reducing not only the population in local jails and state prisons. It is easy for local prosecutors to shirk responsibility for the populations in prisons outside our counties. We should not; we must take responsibility for preventing the virus’s spread in jails, but we must also work to avoid prison sentences that contribute to mass incarceration without serving a public safety purpose. Prosecutors have a duty to promote public safety—that includes the safety, health, and well-being of those who live and work in jails and prisons. We commend the authors for emphasizing the ties between mass incarceration and public health.

Chesa Boudin

Rachel Marshall

As Justin Berk and coauthors illustrate, correctional facilities are at the center of the unprecedented COVID-19 public health crisis in the United States. They are hotspots of infection, especially where dormitory living cannot be avoided. In one large urban jail, during the peak of an outbreak, every infected person transmitted the virus, on average, to eight others. Because many of the conditions of correctional systems are not quickly fixed during a pandemic, decarceration is an essential and urgent strategy to mitigate transmission of the virus.

We recently cochaired a National Academies of Sciences, Engineering, and Medicine committee that found that while some jurisdictions have taken steps to reduce prisons and jail populations since the onset of the pandemic, the extent of decarceration has been insufficient to reduce the risk of virus transmission in correctional facilities. Reductions in incarceration have occurred mainly as a result of declines in arrests for minor infractions, jail bookings, and prisons admissions because of temporary closures of state and local courts, rather than from proactive efforts to decarcerate prisons and jails. There is little scope in current law for accelerating releases for public health reasons. Indeed, medical or health criteria for release, even in pandemic emergencies, are largely nonexistent at the state level, and highly circumscribed in the federal system.

As of November 2020, despite a 9% drop in the correctional population in the first half of the year, prisons and jails were growing again, expanding the risks beyond the 9% of incarcerated people already infected and the more than 1,400 incarcerated people and correctional staff who had died. Because of the large racial and ethnic disparity in incarceration, prisons and jails have likely fueled inequality in infections. And because correctional facilities are connected to surrounding communities—staff move in and out, and detained individuals move between facilities—the outbreaks in correctional facilities are associated with community infection rates and have especially affected health care systems in rural communities.

Further, efforts to decarcerate have not been accompanied by large-scale support of community-based housing and health care needs that are critical to decarcerating in a way that promotes public health and safety. Correctional officials, collaborating with community programs, should develop individualized reentry plans including COVID-19 testing prior to release and assistance for housing, health care, and income support. To facilitate reentry planning, obstacles to public benefits faced by formerly incarcerated people should be removed. Improving the accessibility of Medicaid, food stamps, and rapid housing programs is particularly urgent.

Decarceration in the service of public health will require sustained effort by elected officials; correctional and health leaders at the federal, state, and local levels; and community health and social services providers. Conditions created by high incarceration rates in combination with the pandemic have disproportionately harmed low-income communities of color. Answering the challenge of the pandemic in prisons and jails by decarcerating would reduce community-level threats to public health, improve health equity, and provide a safer environment for public health emergencies of the future.

Emily A. Wang

Bruce Western

Any way you read the statistics or take in the graphics that Justin Berk and coauthors provide, the conclusion is the same: prisons, jails, and other institutions of incarceration in the United States are exploding with COVID-19 cases. With the entire system of incarceration and its related health care realities grounded in legacies of institutionalized racism, the numerical caseload phenomenon is both a driver and reflection of the racialized disparities in COVID-19 across the nation. The authors aptly note that the pandemic behind bars exposes many failures of our carceral system.

Some jurisdictions have responded by reducing the number of people who are confined in these crowded spaces that are ill-designed and ill-equipped to contain a contagion and care for people infected with a pathogen as virulent as the novel coronavirus. The authors, and many others, call this effort decarceration, which they define as “the policy of reducing either the number of persons imprisoned or the rate of imprisonment.”

But calling this numerical effort decarceration is misleading, and it potentially undermines the decades of work of prison abolitionists who have called for, independent of any infection, reformulating the way society approaches the notion of criminal behavior. Reducing the number of people behind bars in response to an infectious disease is depopulation, and is a sound public health measure. Decarceration would involve a complete rethinking of how society relies on punitive confinement as a means of social control, of managing poverty in the absence of a robust safety net, and of sustaining white supremacy. Hinging radical reform of our carceral system on a pandemic appears opportunistic, and we should distinguish the numerical efforts from the philosophical ones.

Make no mistake, however, depopulation as an urgent public health crisis response lays the ground work for transforming the nation’s distinctly punitive and racist system of mass incarceration—sparked by the poignant questions Berk and colleagues pose. Though modest, many state prison systems have indeed reduced their populations, and a number of counties have reduced jail admissions by ceasing arrests for some minor charges. These depopulation efforts have not led to increases in crime. If we can depopulate, then we can decarcerate. The unfolding of the COVID-19 crisis behind bars has, as the authors note, “exposed numerous flaws” in our society. It has also exposed the porous connections between institutions of incarceration and surrounding communities. Most people think of jails and prisons as elsewhere, as cordoned off from society, and therefore find it easy to not think about what happens behind their thick walls. But this has never been the case. What happens behind those walls is happening within our communities, and what happens in our communities comes to bear on what happens in prisons and jails. The coronavirus travels freely between communities and institutions of incarceration—in the breath of workers and incarcerated people who come and go every day. The virus’s carceral travels provide a tragic but exemplary metaphor for why we all must care—and act—to reformulate the US criminal legal system.

Carolyn Sufrin

It is common to think of jails and prisons as islands, isolated and walled, distinct from the community, with real and imagined threats to the community sealed off and contained. In the public mind, there is something reassuring about that image.

The reality, though, is quite different. Jails and prisons are not islands. In fact, they have much more in common with bus stations. With inmate bookings, releases, and three shifts of staff, people are constantly coming and going. The vast majority of people who have been jailed within the past year are walking among us in the community every day. They are with us at work and play, and for a growing number of us they live in our homes and neighborhoods. As such, jails and prisons are an intimate part of the community.

We often justify society’s indulgence in mass incarceration by claiming that we are protecting public safety. But our thinking about public safety—and the public good—is too narrow. We often fail to consider the damage mass incarceration inflicts upon individuals, families, communities, the economy, and the public health. The COVID-19 pandemic has exposed the narrowness of our thinking. When the very structure and function of incarceration contribute to a public health threat, can we continue to justify our system in terms of public safety?

A system must be justified not by what we think or hope it does, but by what it actually does. At tremendous financial and personal cost, the US police, judicial, and prison system incarcerates more people per capita than any country in the world. While the effectiveness of incarceration in deterring crime is debated, the evidence of its impact in other areas is much clearer. For example, the judicial system is especially effective in confining Black men, a textbook example of institutional racism. It is effective in confining people with mental illness and addiction within the walls of institutions ill-suited to treating these conditions. And we can now add a new adverse outcome. With per capita infection rates over five times higher than the community, this institutional-based congregate living system is a highly effective contributor to the spread of COVID-19 within the walls. And with the constant comings and goings of staff and inmates, jails and prisons have contributed to the spread of the virus within the surrounding communities. In other words, the very structure and function of the system have caused harm to public safety by accelerating a deadly pandemic.

The COVID-19 pandemic has revealed a narrowness to our thinking about a costly and inhumane system. A desire for a punitive approach has corrupted clearer thinking and lulled us into believing in the myth of the prison as an island. If we truly want to protect the health and safety of our communities, it is time to back away from the mythical thinking underlying our addiction to mass incarceration in favor of more effective approaches to societal ills.

Scott A. Allen