The COVID-19 pandemic presents a deadly risk to incarcerated people and others who have contact with the criminal justice system. Over 2 million people are incarcerated in jails and prisons in the United States, with another 4.5 million supervised on probation or parole. Approximately 50,000 people are in immigration detention.
Incarcerated people are particularly vulnerable, both because of overcrowded facilities and because incarcerated people have conditions like heart disease and diabetes—risk factors for coronavirus—at higher rates.
The pandemic has resulted in cutting back in-person support systems like Alcoholics Anonymous and group therapy that are critical for people on probation and parole as well as those who are incarcerated. Incarcerated people have also had educational programming and visits curtailed. Jails and prisons lack critical protective gear to stop the spread of the virus within facilities, though the stimulus bill has directed funding to this.
The current crisis is also shining a spotlight on policies that advocates in the criminal justice reform space have long called for.
Several states have authorized the release of incarcerated people who are deemed “low-risk,” especially those who are uniquely vulnerable to COVID-19 like the elderly and people with underlying medical conditions. Even when states, like New York, have authorized the releases the process has been slow and, in some cases, that has been deadly. Raymond Rivera was the first incarcerated person to die at Rikers Island. His release had already been ordered but a process that should have taken five days took six weeks and he and his cellmate both died of COVID-19. The crime that Rivera had originally been convicted of? Stealing a motorcycle cover and few bicycles.
Attorney General Barr issued a similar directive, applicable to people within the federal prison system. Because the Bureau of Prisons will use the PATTERN risk assessment algorithm to make these determinations, there will be significant racial disparities in who benefits from the directive. According to the Marshall Project, only 7% of black men in federal prison would meet the threshold for release, compared with 30% of white men. Barr’s directive also denies release to non-citizens convicted of immigration offenses.
In addition to early release and home confinement, advocates are calling for a moratorium on incarceration for technical parole violations, which can include failing a drug test or not appearing at a scheduled time. 1 in 4 incarcerated people are incarcerated for these technical supervision infractions. It highlights the ways in which parole and probation (known collectively as “community supervision programs”) have come to serve as tools of mass incarceration, rather than alternatives to it. In response to the pandemic, states like Massachusetts have limited electronic monitoring—which requires close contact to fit—to those for whom it “couldn’t figure out a way not to do it,” such as people convicted of stalking and domestic violence.
Crucially, America’s prisons and jails lack the health care infrastructure to care for sick people. Despite being at higher risk of suffering from mental illness, addiction, and serious underlying health issues like a heart condition, incarcerated people face significant barriers to receiving the care they need on a daily basis, let alone during a pandemic. In 1976, the Supreme Court found in Estelle v. Gamble that “deliberate indifference to serious medical needs of prisoners” violated the Eighth Amendment guarantee against cruel and unusual punishment. While subsequent litigation has resulted in major settlements for the families of incarcerated people who have died because of a lack of medical care, there has been little change to the systems that make these tragedies inevitable. Instead, states have increasingly privatized medical care in jails and prisons with problematic contract terms that often absolve the corporation of legal liability or that require the corporation to pay for a set amount of costs should the patient need hospitalization outside the correctional facility, creating a profit incentive to deny people the serious care they may need.
It shouldn’t take a pandemic to recognize and begin to address the unique inequities faced by incarcerated people and those who interact with the criminal justice system. But now that it has, advocates face the challenge of ensuring these policies endure after the immediate threat of the pandemic has passed.