What does coronavirus mean for the US’s prison population?

In the country which incarcerates more people than any other, criminal justice reformers view the pandemic as both a catastrophe and an opportunity.

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The number of cases of coronavirus in the United States passed that of China earlier this week. The virus is spreading, and will continue to spread, and American citizens have been told to stay at home wherever possible. Save for one particularly vulnerable population that cannot: that currently sitting in prisons and jails.

According to the Prison Policy Initiative the United States holds nearly 2.3 million people in prisons, jails, detention centers, and correctional facilities on any given day — the highest prison and jail population in the world, maintained by the highest incarceration rate in the world. The US locks up more people and for more reasons than other countries; in the UK, for example, trespassing by itself is not a crime but in the US it can result in arrest and time in jail. Experts warned early on that the prison population could be hard hit by the coronavirus pandemic.

“The best thinking,” says Nicole Porter, director of advocacy at the pro-reform Sentencing Project, was “leading people to think [that] when it broke out in prisons and jails, it was going to be catastrophic.” When individuals, cities, and states started encouraging Americans to practice social distancing, she adds, “advocates were coalescing around demanding releasing people from prisons and jails.”

In America prisons are run by states or federally and are for those convicted of crimes and serving longer sentences. Jails are usually local facilities for the newly arrested, those awaiting trial or sentencing, and people serving shorter stints. The sheer number of people sitting in either prison or jail, to say nothing of the conditions in which they’re sitting and the rate at which the virus could spread if introduced, is daunting. The way in which the US system is set up makes it especially difficult to tackle.

“The vast majority of people who are impacted are in the states [ie at the state, not federal, level]. And that is a disaster,” says Emily Galvin-Almanza, senior legal counsel at the Justice Collaborative. “We have no centralised authority that we can be educating.” There are, she notes, 50 governors. And there are who knows how many county commissioners, and mayors, and sheriffs, and police officers.

“Jails alone - in those spaces, the rate of turnover is so high,” she says. “Five million people a year pass through local county jails … We're talking about a transmission center for viruses.” And the changes that have been made so far are not enough: “We’re still seeing police arresting people on a five-year-old warrant on a trespassing case.”

“None of it is enough yet. None of it is on the scale we need to diminish risk,” Galvin-Almanza argues.

Some states have made changes that criminal justice advocates regard as positive. Governor Newsom in California, for example, said as part of his executive order in response to Covid-19 that there would be no new admissions to prison from county jails; which, as Porter explains, in turn puts pressure on local jail systems to depopulate. And hundreds of people have been released from jails around the country — not only in “blue” states like California, but also in Ohio and Tennessee.

Even in Texas, which locks up more people than any other US state, some changes have started to appear. “Texas is unique in its insistence and reliance on jails and prisons and harsh criminal policies outside of coronavirus,” Liyah Brown, legal director of the Criminal Justice Reform Program at the Texas Civil Rights Project, tells the New Statesman. That includes people in pre-trial detention. “They are poor people who cannot afford to make bail and defend themselves,” Brown says. But even Texas has decided in part to listen to public health experts, with some jails releasing certain people under certain terms: 70 non-violent inmates were released from Smith County Jail, while the McLennan County Jail looked to release those who had been charged, for example, for driving with an invalid license or committing a theft worth between $100 and $750.

None of this, advocates say, is enough. To use Porter’s parlance, the “action does not meet the spirit of what's been called for,” which is significant depopulation and decarceration.

And in some states, developments seem to be going in the opposite direction. Take New York's bail reform law, which went into effect on 1 January and prohibited courts from setting cash bail for the majority of misdemeanors and nonviolent felonies. “On any given day [since the law went into effect] roughly 7,000 fewer people are being held in jails across the state,” says Erin George, civil rights campaigns director at Citizen Action of New York. “This means that there are 7,000 people not exposed to heightened risk.” That was a positive move. But shortly after it was enacted, various political actors — including New York Governor Andrew Cuomo, who was accused of being soft on crime — began pushing for rollback or modification. And while New York City Mayor Bill de Blasio said he would release 300 nonviolent, elderly inmates from Rikers Island, George considers that number wildly insufficient (Legal Aid Society has said that the rate of infection on Rikers Island is seven times higher than the rate of infection citywide).

One might think that that would be discouraging. If the threat of a virus that has brought the world to a halt and killed thousands is not enough to coax Americans away from their faith in keeping people in jails and prisons, what will be? But the advocates themselves are more heartened than deflated. There have been some modest efforts made to decarcerate and depopulate in response to the pandemic. Those working in this field suggest that that means those released did not need to be there in the first place — and that this moment can therefore be used to decarcerate and depopulate after the pandemic.

“This is about politics. I think that's clear,” Porter says: “If localities can make decisions over the last couple of days to not put people into local jails and that practice happened not just in states like New York and California but also in Texas ... If local decision makers, local law enforcement officials can make decisions ... because they themselves are trying to control their contact, prevent an outbreak, then those decisions can be made outside of a pandemic”.

“My hope is that we’ll see [society] being forced to come up with non-carceral solutions to conflict and misconduct,” Galvin-Almanza says.

Those solutions — or the realisation that elderly people have a low recidivism rate and can be released, or that children should not be held in prisons and jails waiting to get sick — could continue after the pandemic. “Finally our public health officials, the experts are getting the attention,” Brown says, “and also these walls — these fake barriers between who's in prison and who's not — are starting to come down.”

George shares the cautious optimism, but warned that releases from prisons and jails should not be mistaken for a shift in consciousness. “There's opportunity,” she argues: “But there's also a lot of vigilance [needed] and work we need to do.”

Emily Tamkin is the New Statesman’s US editor

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