As the coronavirus pandemic rolls on, there’s another cancellation that must take place: Judges must immediately refuse to remand every possible new arrestee to correctional facilities — for everyone’s sake.
At the state and local level, this means dispensing with bonds for practically anyone who gets arrested. At the federal level, it means that anyone who has been sentenced or will be sentenced soon but is still out should have their sentences modified to house arrest.
This is not just for their sake — though condemning people simply arrested not yet convicted to a dangerous and sometimes deadly disease is hardly the mark of a civilized nation — but for the sake of public health in general. The fact of the matter is that there is no plan in place to prevent transmission in jails and prisons, and the conditions imposed on prisoners, despite known health consequences, will cause it to spread quickly.
And then a large number of those then infected will be released, either because they will not have been convicted or will have served their sentences.
Infectious disease in prisons is a serious public health risk: Inmates are crammed into living quarters with many others, even in facilities that aren’t deemed "overcrowded"; self-quarantine and maintaining a 6-foot radius between people aren’t options in these places. Normal hygiene practices like squirting hand sanitizer or washing one’s hands aren’t always possible, because hand sanitizer’s alcohol content makes it contraband and soap belongs to those who can afford it from the commissary, despite any directives that claim it should be free.
Contaminated hands in close proximity to people's faces will make prison facilities COVID-19’s playground. Introducing one person who’s contracted it into these conditions will likely cause a cascade of infections that officials won’t be able to contain or even begin to treat.
And we know from experience what can happen from there. According to authors of a study of HIV, hepatitis C and tuberculosis published in the Lancet in 2016, correctional settings “have emerged as a risk environment for these infections to be further concentrated, amplified and then transmitted to the community.” In Nassau County, New York, for example, 24 percent of community cases of tuberculosis during an early 1990s outbreak were traced to a local jail.
Part of that is a result of jail churn — the way in which people are booked into and out of local jails in a year — which is higher than most American realize. According to the Prison Policy Initiative, more people cycle through jails in a day than are admitted or released from state and federal prisons in two weeks.
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For context, there were about 700,000 people being held in local jails on any given day in 2014; most have yet to be convicted of a crime and about 54 percent of the jail population nationwide turns over each week. In California, about 2,727 people are released from jail every day. In Washington state, the epicenter of the United States coronavirus spread, an estimated 838 people are released every day. In New York, home of one of the largest coronavirus clusters, around 760 people come home per day.
Thus, sending more people to, and keeping them in, these facilities in the midst of a public health crisis is an escalation of the pandemic just waiting to happen.
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Reports have already surfaced that COVID-19 has been found within prisons. San Quentin administrators say current cases are affecting their wards. A public defender who later tested positive resulted in two Santa Clara County Jail detainees being sent to quarantine. A prison staff member in Washington state has tested positive, resulting in a temporary end to visitation and a quarantine of all units where the staff member worked. And 11 inmates are under quarantine in Delaware County, Pennsylvania.
The rapid increase in infections and quarantines have resulted in multiple calls for release of inmates. On Sunday, former Trump attorney Michael Cohen — currently confined at the federal prison camp at Otisville, New York — called on the president to release federal inmates to reduce the spread of the disease. Public defenders from New Orleans, the state of Minnesota and New York City’s Legal Aid Society as well as the New York City Board of Correction asked for the same. Rep. Ayanna Pressley, D-Mass.,has called for clemency for federal inmates to stem the spread.
The idea is taking hold: The jail in Cuyahoga County, Ohio, released people on Saturday, and a Michigan sheriff is considering doing so as well.
That said, those who are incarcerated must be screened, tested and, if necessary, treated or civilly quarantined for COVID-19 before returning home. Right now, select jurisdictions screen people for some illnesses before entering facilities, but not those re-entering society — and definitely not for this disease, which too few Americans have been tested for in any case. But we don’t want to become Iran, where COVID-19 has ravaged prisons and the government is now releasing 85,000 people — about a third of their whole prison population — without testing, quarantine or treatment.
Beyond that, though, wholesale decarceration to save lives is a worthwhile plan, but it will be undermined without a moratorium on new admissions.
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There is, of course, precedent for keeping defendants out of custody while an external situation resolves itself. After the Supreme Court case, United States v. Booker, changed federal sentencing guidelines from mandatory to advisory, defendants in federal criminal cases weren’t sentenced for several months, pending the Department of Justice’s implementation of the new rules. Eventually, most of the accused people did head for prison, but they did so much later than they anticipated — and there was no resulting crime wave.
The COVID-19 stakes are much higher than any correct policy implementation, and getting it right will affect far more people than just those sitting in the defendants' chairs.
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Ceasing to send new admissions to jails and prisons could also be a de facto bail and prison reform rolled together: If a person who would have been sent to prison or jail during the coronavirus outbreak doesn’t break the law during their dispensation, then correction has been achieved; placing them in custody later could be considered redundant. While some might object that anyone who’s spared incarceration hasn’t been punished, they forget that the point of punishment is changed behavior.
If keeping people out of prison during this pandemic keeps the infection rate down and fosters necessary personal growth without costly and dangerous confinement, this country could get ahead of more than one curve during this crisis.