Rethinking Prisons And Public Safety During A Pandemic

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Above photo: Dormitory bays at Bibb County Correctional Facility house around 100 people, who share bathroom facilities and sleep side-by-side. Mary Scott Hodgin, WBHM.

With correctional facilities disproportionately affected by COVID-19, this op-ed argues why the current pandemic demands an opportunity for renewed reflection on prison reform in the United States.

Of all the places one would not want to be during a pandemic, prison presumably ranks above nearly every other.

The unsanitary conditions of prisons, jails, and other places of forced confinement create what amounts to a petri dish ripe for viral transmission. Correctional facilities are epicenters for COVID-19 because people who are incarcerated endure unavoidable close contact in often overcrowded, poorly ventilated, and unhygienic facilities, coupled with limited access to health care services. These conditions make compliance with essential viral mitigation measures — social distancing, frequent hand washing, and respiratory masking — challenging, if not, in many cases, impossible. In the nation’s federal prisons alone, approximately 800 incarcerated individuals and over 300 staff have already tested positive for COVID-19.

These harrowing realities mean that the country’s correctional facilities should immediately take steps to protect the lives and health of incarcerated people. More broadly, though, they also demand an opportunity for renewed reflection on the role of prisons in the United States. In fact, the reshaping of the American penal system could be a defining component of the socioeconomic renaissance that will hopefully occur as society rebuilds itself after this crisis. For the sake of our democracy, especially for its residents who are members of communities of color, we need to ensure that comprehensive incarceration reform is a top priority in pandemic-related relief and recovery.

2.3 million people, a grossly disproportionate number of whom are African-American and Latino, men, women, and children, are incarcerated in the United States, which has the highest per capita incarceration rate in the world.

More specifically, 40 percent of the U.S. prison and jail population is African-American, which is more than triple the percentage of African-American people in the general U.S. population. And, approximately 23 percent of the prison population is Latino, which is 7 percent greater than the Latino general population. As a result, COVID-19 poses a distinctly targeted threat to Black and Latino communities, whether or not they are under supervised control.

Recognizing the immense health threat that over-incarceration and overcrowding pose to incarcerated people and correctional officers, some judges have ordered the release of individuals who meet certain criteria.

In Ohio, for example, a federal district court judge ordered the release of medically vulnerable prisoners from a low-security prison. The judge described the “highly infectious conditions” as a “losing battle for staff … [and a] losing battle for inmates.”

Ultimately, prisoners over age 50 and those with health conditions that make them vulnerable to severe COVID-19 complications could be afforded life-saving compassionate release, parole, or community supervision — or other humane modifications to their confinement.

In Arkansas, African-Americans make up less than 16 percent of the state’s population but account for roughly 29 percent of confirmed COVID-19 cases and nearly 40 percent of deaths. Black Arkansans are also four times more likely to be imprisoned than their white counterparts – and incarcerated people make up approximately one in six verified COVID-19 infections statewide. The NAACP Legal Defense Fund is currently fighting for emergency relief to save the lives of this vulnerable population.

By contrast, in Washington State approximately 1,500 persons are slated for early release, and there have been nearly 400 commutations. Even the state of Louisiana, which is home to the infamous Angola penitentiary named after the country of origin of enslaved Africans, created a review panel to determine if 1,200 eligible incarcerated people who are nearing the end of their sentences should be released to reduce the spread of the coronavirus within jails.

Louisiana stopped short, however, of issuing relief for all medically vulnerable incarcerated people. Furthermore, the composition of the review panel, which overwhelmingly includes members of law enforcement, may make release more difficult, assuming the decision to create the panel survives a court appeal.

Determining how to protect incarcerated people and correctional facility employees while ensuring public safety raises fundamental questions about the purpose and morality of prisons in society more broadly. Of course, these questions are not new. But they take on new urgency amidst a pandemic.

In 2003, renowned civil rights activist, feminist, and scholar Professor Angela Y. Davis published a provocative manifesto questioning the utility of prisons in the context of a prison-industrial complex reliant on the steady, long-term incarceration of Black and Latino bodies. Davis’ book, Are Prisons Obsolete?, helped launch the modern movement to abolish prisons that is gaining increasing traction. While prison abolition may seem radical, it presents a thought-starter to theories and experimentation with alternatives to incarceration, such as diversion and community accountability programs that involve social and psychological supports. More locally, pre-emptive social services have been proven to decrease crime on the front end.

Studies have shown that prisons do little by way of improving societal norms; prevailing arguments also state that they also have the opposite effect of creating collateral consequences that punish not just the imprisoned, but entire communities. It’s common knowledge that prisons do not rehabilitate people. Nor have the exceptionally long periods of incarceration characteristic of the American penal system proven to be effective in deterring crime. Additionally, prison, parole, and probation operations cost taxpayers $81 billion annually that could instead be used for education, health, and other proactive community investments.

The expanding legalization of marijuana, growing recognition of drug addiction as a health issue amidst exponential white opioid addiction, and celebrity awareness-raising efforts concerning draconian sentences have brought renewed attention to the penal system’s failures. And now, the pandemic provides a unique opportunity to consider the carceral state in a new light, and decide whether sentencing laws and prison conditions are consistent with our societal goals.

There are countless ways our society will likely be permanently altered because of the pandemic. Many have stated that, if we return to business as usual, we will have missed the opportunity that this crisis has provided for reflection and reform.

The role of prisons in society is one area that requires urgent reexamination — and COVID-19 has forced a re-prioritization of safety imperatives that should inform our long-term approach to crime and punishment. The continued incarceration of the elderly and infirm, youth offenders who need rehabilitative social services, non-violent drug offenders, and other people who pose minimal public safety risks is outmoded and unhealthy for a modern democracy. Releasing these populations only represents a “low-hanging fruit” effort in comprehensive prison and sentencing reform though. The more difficult but equally urgent work lies in changing prisons’ overall conditions, and reducing the population of incarcerated people through measures like universal bail reform, compassionate release, raising the age of criminal culpability, and expanding alternatives to incarceration, like diversion programs, community service initiatives, and social support services.

Additionally, as MacArthur Fellow and former public defender Sujatha Baliga suggested, normalizing practices like restorative justice, which centers on healing and forgiveness, is a viable and more humane alternative to our punitive system of criminal law, even in the most difficult cases. Restorative justice is a cooperative and reparative process in which various stakeholders seek transformation through facilitated communication and engagement. For decades, this practice has expanded worldwide as an alternate means of seeking justice ad healing and communities around the United States are using it increasingly in various forums in and out of the court system.

The impact of the pandemic is an invitation, if not a demand, to rethink our approach to incarceration. The collective destinies of prisoner and imprisoner are inextricably linked through proximity and the virus — and are within our control. If we emerge from this crisis with nothing else but a template for a criminal justice system based on redemption, rehabilitation, and restoration, the exacting lessons of the pandemic will not have been lost on us.

Janai S. Nelson is Associate Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. (LDF). Prior to joining LDF in June 2014, Nelson was Associate Dean for Faculty Scholarship and Associate Director of the Ronald H. Brown Center for Civil Rights and Economic Development at St. John’s University School of Law. Nelson is recipient of the 2013 Derrick A. Bell Award from the American Association of Law Schools (AALS) Section on Minority Groups and was named one of Lawyers of Color’s 50 Under 50 minority professors making an impact in legal education. Find her on Twitter @JNelsonLDF.