Every public official with the power to decarcerate must exercise this power now
It will save countless lives, and in doing so, they could show us by example how to finally begin to dismantle mass incarceration for good.
This is a commentary article, part of The Appeal’s collection of opinions and analysis.
Most of America’s 2.3 million prisoners cannot practice social distancing. They are crammed into overcrowded facilities, living, sleeping and bathing a few feet – sometimes a few inches – from each other. Plus, they lack basic necessities including soap, hot water and clean towels, not to mention hand sanitizer. Unless drastic measures are taken, thousands of people inside, both staff and prisoners, will needlessly die.
The radical action required – the only one that can prevent massive and unnecessary loss of life – is to reduce the population of prisons and prisons. Efforts in this direction have started in many jurisdictions. But the measures taken so far are far from sufficient, not by far. All public officials with the authority to release – including sheriffs, prosecutors, judges, correctional officers, parole boards, and governors – must act and immediately find ways to free as many people as possible before the virus don’t knock. In doing so, they have the opportunity to both save thousands of lives and begin the long-awaited process of ending the costly, inhuman and counterproductive project of mass incarceration.
In the 1970s, the size of America’s prison population was roughly comparable to that of other Western democracies. Yet from the 1980s onwards, the United States had become the world’s largest jailer, blocking people incarcerated in dormitories and doubling them in small cells with open disregard for their health and well-being.
There was a time, starting in the mid-1970s, when federal courts faced with dirty, decrepit, and overcrowded prisons easily found conditions unconstitutional and ordered states and municipalities to reduce their prison populations. But when President Clinton joined Congress to enact the Prison Litigation Reform Act, the power of federal courts to issue such orders was drastically curtailed.
In the mid-1980s, 43% of the national prison population and 27% of the prison population were housed in institutions with court-ordered population ceilings. By 2006, these numbers had fallen to 11% and 2% respectively, compromising key control over overcrowding.
Today, difficult conditions and often very poor health care leave many prisoners medically compromised. In California prisons alone, an estimated 17,000 people – 14% of the state’s prison population – suffer from chronic illnesses, including cancer, end-stage liver disease, acute asthma, diabetes, high blood pressure and kidney problems requiring dialysis.
Long before the arrival of COVID-19, some jurisdictions had taken measures in favor of decarceration. The federal prison population is down 20% from its historic high of nearly 220,000 in 2014. From 2006 to 2016, the New York prison system lost 10% of its population. In 2016, the New Jersey Department of Corrections had 37% fewer people than its peak in 1999. Some local jurisdictions have gone even further. Thanks to bail reform and other strategies, the population of Cook County Jail in Chicago has declined by more than half since 2005. On Rikers Island, the population has declined by more than two-thirds compared to ten years ago. Yet these facilities are outliers and, as the growing number of confirmed cases at both institutions clearly shows, even they remain too overcrowded and too full of people from the groups most at risk to avoid the devastating effects of the virus.
But the crisis is an opportunity. As the COVID-19 threat grows, something unthinkable is happening just six weeks ago: Government officials are letting people out. UCLA Law School has created a public database to track coronavirus-related policy changes across the country, and it shows conscientious officials rediscovering decarceration powers they had forgotten. Authorities in Fort Worth, Texas, have suspended arrests for minor offenses. Oakland, Calif., Sent home 314 low-level offenders. The New Jersey Supreme Court has ordered the release of anyone jailed for a probation violation or for a minor offense. In West Virginia, prison officials are releasing parole offenders and extending weekend breaks and are actively seeking other levels to be removed. Corrections commissioners in Iowa, North Dakota, Rhode Island and other states are seeking to expedite parole and refer people to community placement.
Some officials fear that prisoners with COVID-19-induced respiratory distress will be sent to local hospitals and monopolize scarce ventilators. But whatever the motive, no one is rushing to free someone dangerous. Nor do they need to do so to quell this crisis.
For decades, we have incarcerated hundreds of thousands of people who pose little risk to public safety. Many people detained at this time have committed non-violent crimes. Many, after decades in prison for serious crimes, are quite ready to be law-abiding and productive citizens. Many more are old and sick and in need of medical or palliative care, no bars or handcuffs.
COVID-19 is already crossing prisons and prisons across the country, and confirmed cases are increasing exponentially. At Rikers, 374 staff and 273 residents have now tested positive. In Oakdale, a low-security federal prison in southwest Louisiana, at least five prisoners have already died. Those numbers, along with all reported positive cases and indoor COVID-19-induced deaths, are almost certainly underestimates. In every facility, once the virus takes hold, it will spread quickly. Countless numbers of people will die, effectively condemning them to the death penalty, regardless of their crime.
Any public official with the power to decarcerate should exercise that power now, to the extent possible. If they do, they will save countless lives, including those of staff. And in the process, they can show us by example how to finally begin to dismantle mass incarceration for good.
Sharon Dolovich is a professor of law and director of the prison law and policy program at UCLA. She is currently leading the UCLA COVID-19 Behind Bars data project, which tracks developments related to COVID-19 in prisons and prisons across the country.