PRISONERS AND THE CORONAVIRUS

Paul Bullis, Co-Chair DSC Prison Reform Task Force
Jails and prisons, with so many people packed into small spaces, have been referred to as “incubators” and “amplifiers” of infectious diseases such as COVID-19.  What should be done to protect incarcerated and detained individuals from COVID-19?  This question becomes more important the more the coronavirus spreads.  The federal government, plus states and counties throughout the country, are all struggling with how to answer this question.
Background
Approximately 2.3 million persons are incarcerated in the nation’s 6000 prisons and jails.  This includes 167,000 persons in federal custody.  Another 37,000 persons are detained by Immigration and Customs Enforcement (ICE), of which more than 60% do not have criminal convictions.  In Arizona alone there are approximately 42,000 people incarcerated just in the State’s prisons, not counting county jail inmates or ICE detainees in the State.  However, “while Americans across the country are being encouraged to self-isolate, members of our incarcerated population are, by definition, doing the exact opposite with no alternative options,” said Suffolk County (Massachusetts) District Attorney Rachael Rollins, in a statement released on March 18. “We need to seriously consider pathways to prevent the spread of COVID-19 for our incarcerated populations, the overwhelming majority of which will return to our communities at some point in the future.”  (The Enterprise, March 19, 2020.)
How are States and the federal government addressing coronavirus and prisoners?
President Trump said on March 22 that the federal government was “looking at” releasing the possibility of releasing nonviolent elderly prisoners who are at high risk of experiencing severe symptoms if they contract COVID-19.  On March 26, Attorney General William Barr directed the federal Bureau of Prisons to increase the use of home confinement among older inmates in order to mitigate the spread of the coronavirus within the federal prison system.  As of that date, 10 inmates and eight staff members have tested positive for COVID-19 in federal facilities.
ICE has announced that it will temporarily halt arrests, or use means other than detention, for persons who are not public safety risks or subject to mandatory detention.  In addition, ICE will not carry out enforcement actions at or near health care facilities such as hospitals and doctors’ offices.  ICE has also suspended social visitation in all detention facilities.  However, ICE has not stated that it has or will release detainees as a way to lower the risk of exposure to the coronavirus.  There have been two detainees and three employees working in detention facilities who have tested positive for COVID-19.
States have taken a variety of steps to address the coronavirus risk in their prisons and jails.  One of the best ways to protect inmates and employees is to reduce overcrowding in the facilities.  Some jails are already making these changes.  For example, district attorneys in San Francisco, California and Boulder, Colorado, have taken steps to release people held pretrial, with limited time left on their sentences, and charged with non-violent offenses.  Some courts and local jurisdictions in Alabama, California, New Jersey, New York, Ohio, South Carolina, Utah, and Washington have released persons held on low-level, non-violent crimes.
Also, in Coconino County, Arizona, 50 people who were held in the county jail on non-violent charges have been released.
Although state prisons have been slower to act on reducing inmate populations, some states have moved ahead. The North Dakota parole board has granted early release dates to dozens of inmates, and Iowa plans to expedite the release of 700 prisoners determined eligible by the parole board.  Illinois is working to prioritize the release of older or vulnerable inmates while ensuring public safety and is eliminating the 14-day notice to the state’s attorney in order to expedite releases.
In addition to reducing inmate populations, many states and counties are working to reduce the number of new inmates admitted to jails and prisons.  This includes citing, but not arresting, people charged with non-violent offenses (Arizona, California, Colorado, Pennsylvania and Texas), dismissing charges against people arrested for nonviolent crimes (Maryland), releasing people charged with non-violent crimes (New York, Oklahoma and Pennsylvania), and not accepting new inmates to state prisons (Oklahoma and California).
Most federal and state prisons and many local jails have also drastically reduced or eliminated visitations in order to reduce exposure to coronavirus in facilities.
Arizona’s prisons have taken a number of steps to help stop the spread of the coronavirus, including suspending all visitation for at least 30 days, stopping routine internal movement of prisoners, suspending inmate classes provided by local community colleges, checking inmates and employees checked for COVID-19 symptoms when they enter the facilities, and conducting weekly deep cleaning of all facilities.
Should prisoners be released to protect against the coronavirus?
Many people and organizations such as the ACLU and American Friends Service Committee are advocating for the release of inmates in order to reduce the risk of coronavirus transmission in prisons and jails.  In addition, on March 27, Democrats on the U.S. House of Representatives’ Judiciary Committee introduced legislation to provide $1 billion in grants to state and local correctional facilities to help them mitigate the impact of the coronavirus outbreak. In order to qualify for those funds, authorities would have to reduce their incarcerated populations by immediately releasing inmates who have a high risk of contracting COVID-19 and a low risk of harming others.
Releasing an inmate will certainly be good for that individual.  However, there are a number of other factors that need to be considered when deciding whether to release inmates. Here are only a few.
How to protect the public from a released inmate spreading the coronavirus.  There may need to be a quarantine of inmates either prior to or after release in order to ensure that the inmate does not have COVID-19.  Other steps may also be necessary.
How to protect the public safety from released inmates.  In other words, who should be eligible for release?  Should only persons who have been convicted or charged with non-violent crimes be released?  Should an inmate’s disciplinary record be taken into account?  Should only inmates who are close to their release dates be eligible?  What if the inmate already has COVID-19?  What else should be considered in deciding who is eligible for release?
Legal process.  Who has the authority to release a prisoner?  Can a sheriff release an inmate, or does a judge have to authorize it?  Does the law prevent the release?
Political considerations.  Will someone who releases an inmate be considered “soft on crime” or “soft on illegal immigration?”
Whether the facility actually be helped by the release.  Even if several inmates are released, will that be enough to reduce the risk of spread of coronavirus in the facility?  If not, then should any be released?
In addition to protecting inmates from the risks associated with the coronavirus, governments must also be concerned about the risks to their employees who work in prisons and other detention facilities.
As always, the devil is in the details when it comes to making decisions about how to best protect inmates and employees against the coronavirus.  In addition, the situation with the coronavirus is moving so rapidly that this article will be out of date by the time you read it.  If you have an opinion on any of the topics discussed here, the time to tell your elected officials is now.

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