GettyImages-114284212.jpg

A new report released last week from The Justice Collaborative and Data for Progress taps into the concerns that have been arising over the past month about the impact that COVID-19 will have on U.S. correctional institutions. The report, “Local officials should quickly reduce jail populations to slow the spread of coronavirus,”  highlights the role jails will play in spreading COVID-19 while offering up suggestions on what local leaders can do to mitigate that spread.

Public health officials have warned that correctional facilities are tinderboxes for COVID-19 because many of those incarcerated have chronic health conditions or are elderly, and the facilities themselves do not allow for social distancing or maintaining good hygiene. While many of these concerns are present across the board, from long-term prisons to local jails, the report hones in on how jails in particular are “powerful vectors of disease.” The report notes the rapid spread of the novel coronavirus within American jails in just a few weeks, especially those in New York state. Rikers Island, for example—a jail complex that houses over 5,000 people—currently has the highest rate of COVID-19 infection of any community in the world.

John Pfaff is a professor of law at Fordham University who authored a report says that jails pose a particular threat to public health because the populations that they detain are far less stagnant. However, in conversation about incarceration, jails tend to be overlooked “because the number of people in jails seems deceptively low.”

“On any given night, our jails hold about 750,000 people, our prisons about 1.5 million—so prisons have always seemed more important,” said Pfaff. “But jails churn through so many more people: While we admit about 600,000 people to prisons, we admit over ten millionto jails, made up of about five million unique people. This churn makes jails particularly relevant when confronting a highly infectious disease.”

Jails—even more so than prisons, the report argues—pose a threat to public health because the populations that they detain are far less stagnant. Jails hold people who are either serving sentences of less than a year, or those who are on pretrial detention and can have average stays of anywhere from two to three months to just a few days. That “churn,” or constant movement in and out of facilities, results in over 10 million annual admissions to jails nationwide and can easily introduce diseases like COVID-19 into these facilities, as well as to the general public when the inmates return home. 

To combat the spread of disease through jail churn, the report advocates for the mass release of people from jail, arguing it will pose little threat to public safety since the majority of those who are detained pretrial are only there because of their inability to pay bail. Data from New York City shows that releasing people without bail did not decrease their likelihood of returning for their court date. In fact, longer stays in pretrial detention only serve to raise an individual’s likelihood of later rearrest.

The report also outlines specific decisions that local leaders, namely prosecutors, can take to decrease jail populations at this critical moment. Among the recommendations for prosecutors are dropping charges against defendants, dismissing cases without prejudice so that they can be refiled at a later date when the pandemic is over, and asking judges to reconsider bail decisions for defendants. For judges, in addition to requesting lower or no bail, the report encourages them to directly authorize their sheriffs to release people from jail.

Throughout the past month, organizers and advocates across the country have been crafting a series of local, state, and national demands, and urging leaders to consider how COVID-19 will impact incarcerated communities. Many of these demands have been relatively uniform, highlighting the need to release those most vulnerable to the virus, either due to their age or preexisting health conditions. Interestingly, the report asks leaders to widen that net and release those who are young and presumably healthy as well. “The focus must be on how the disease spreads,” the report explains, and those who might be at less of a risk for falling seriously ill from the virus can still easily infect others inside of their facilities and compromise any efforts to truly flatten the curve.

“Reducing jail populations isn’t just about reducing exposure of those in jails, but about reducing exposure in the communities those people come from,” said Pfaff.

The report is optimistic about not only the efficacy of these policy recommendations but the likelihood that they can be achieved. Examples of local leaders in California, Florida, and Colorado who have taken steps to decrease their jail populations are cited. The report also features illuminating polling that reveals growing public support for mass release and alternatives to incarceration in the wake of the pandemic. The polling, conducted by Data for Progress and The Justice Collaborative, assessed voters’ opinions both within New York state and nationally and found broad bipartisan support for the release of incarcerated people in a variety of different subcategories, from the elderly to those who have only months left in their sentences. Similarly, there was majority support for police to begin issuing summons or tickets as opposed to incarcerating people in jails just to ensure that they will appear in court.

Pfaff expects this bipartisan support to continue when the pandemic ends as criminal justice reform has been a more widely accepted issue across the political aisle even before the world began grappling with the novel coronavirus. However, he does point to groups that continue to oppose decarceration even in the face of the pandemic.

“It is important to note that those who have opposed reforms, such as state district attorney associations and law enforcement unions, have maintained their fierce opposition to decarceration even during the pandemic,” said Pfaff. “But I am hopeful that the mobilization efforts that have taken place during the pandemic will continue after it passes.”

Ultimately, the report underscores the urgent need for local leaders to not only take these drastic efforts, but to take them as soon as possible. Not only is the health of people inside being compromised every day that leaders remain inactive, but as the pandemic changes how the criminal legal system operates, courts are being shut down or scaled back, narrowing the window within which these measures can even be implemented.

Tamar Sarai

Tamar Sarai is a features staff reporter at Prism. Follow her on Twitter @bytamarsarai.