COVID-19 – also known as Coronavirus – is an increasing risk to public health in the United States. While universities, businesses, and hospitals are preparing, it is worth considering what jails and prisons will look like as the virus continues to spread. Many experts say that it is only a matter of time until coronavirus enters correctional facilities. As such, courts should be setting bail only for absolutely necessary cases to avoid sending more people into jails and prisons, which notoriously lack adequate health care.

There are approximately 2.3 million people in American jails and prisons and 40 percent of them suffer from a chronic health condition, like diabetes, hypertension, or HIV. Unhygienic conditions pose an extra problem, as prisons and jails are already a breeding ground for infectious diseases like tuberculosis that no longer functionally exist outside of institutional contexts in the United States.

As it is, there have been reports of jails not having soap or hand sanitizer. In fact, in some prisons, hand sanitizer is banned because of its high alcohol content. Even in New York, where Governor Andrew Cuomo has declared that prison inmates will begin production of hand sanitizer for the state’s schools and government agencies, it is unclear whether the individuals producing it will be able to use it themselves.

King County jail encountered its first case of Coronavirus less than a week ago. This individual was taken to a hospital, but it is unclear whether there are actual protocols in place for the care of inmates either inside or outside these jails in Seattle and beyond. In Iran, more than 54,000 prisoners were temporarily released in order to halt the spread of the virus inside their facilities. But in a country like the U.S., which has minimal social services in place for those attempting to re-enter society after spending extended periods of time in prison – whether it be housing or healthcare – replicating Iran’s policies seems all but impossible. The American prison system is also not known for prioritizing the human rights of prisoners, particularly if it comes at the expense of “public safety.”

However, what the country can do is to prevent more people from flooding into the system by setting no bail on all possible offenses until the public health risk has subsided. This would not only protect folks inside jails, but also ensure that individuals are able to access the best possible health care they can outside of the corrections system. Judges have discretion. Bail is not required for most offenses, and the determination is based on an analysis that takes several different factors into account. As such, the health risk of putting one more person in jail should be an important factor for judges to consider in making their bail determinations. Where possible, defendants should be released on their own recognizance. Before leaving jailed and imprisoned individuals at the mercy of inadequate health care, courts should be doing everything to prevent the influx of people into these spaces, as a matter of both public health and human rights.

Millions of people are already incarcerated, and will undoubtedly remain behind bars as courts shut down, or delay trials and “non-essential” legal proceedings. Departments of corrections will have to act swiftly to protect those individuals, particularly in light of the significant risk that their facilities will become “incubators” for the virus. These decisions will involve an exceptional balancing act, as correctional facilities are teeming with potential abuse. For instance, jails that have banned in-person visitations should provide free video call services in order to ensure incarcerated individuals are not completely shut off from society. Like most of the decisions being made around containing this virus, policies inside jails and prisons will not be easy to implement. However, in times like these, it becomes more important than ever to intentionally protect society’s most vulnerable. Folks in prison deserve humane responses to this growing concern.