COVID-19 Sparks New Thinking About Incarceration

Hoping to stem the spread of COVID-19, cities and states around the country have issued social distancing guidelines or orders. In the absence of a vaccine or a cure, and given the possibility of asymptomatic infection, minimizing human contact seems to be the most viable strategy for slowing the pandemic.

The glaring exception to these distancing measures is the criminal justice system. By statute and custom, people are forced into close proximity, especially in local jails and lockups. Even the arrest itself is problematic. There is no six-foot social distance maintained while police transport prisoners in their squad cars, fingerprint, and book them.

The Vera Institute of Justice estimates that about 200,000 individuals per week are booked into county jails nationwide, with about the same number released. This constant churn sends these individuals — not to mention all the personnel employed at the jails — back into their communities, perhaps infecting friends and family.

Local officials around the country have taken steps to reduce these COVID-19 risks. Police leadership and unions in Philadelphia and other jurisdictions are issuing citations or arrest warrants instead of arresting suspects for all but the most threatening cases. Judges in Oklahoma and Maine have vacated low-level warrants or placed them on hold. These orders, however, are keyed to the COVID-19 crisis rather than to any permanent change in policy.

Some jurisdictions have resisted even these steps. The Sheriff in Tarrant County, Texas, asserts that he will continue “business as usual . . . . We are not going to let things slide by.”

While the focus is on COVID-19 mitigation, we should be asking some much more fundamental questions. Why does the default response to wrongdoing — that “business as usual” mantra — consist of locking people up? Twenty-thousand people arrested every week is not some fact of nature, like a winter storm or a spring flood, to be coped with as best we can.

It is estimated that while the US has 5% of the world’s population, it has 25% of the world’s prisoners. What gives? Surely other countries also have shoplifters, turnstile jumpers, trespassers and drug users, but they have found ways of dealing with these minor and nonviolent offenses short of destroying families and futures, and now transmitting infection. (We all lock up violent offenders and those, such as drunk drivers, who endanger others.)

COVID-19 gives new impetus to the debate over the US incarceration rate. Prosecutors, judges, police, sheriffs and local officials are now having to answer some hard questions about why certain categories of people are routinely locked up when they pose no danger to the community. Is there a simpler way to ensure appearance for court — say, a citation? Why are those without cash — usually poor and minority — kept in custody while those with money can bond out?

A number of organizations including the Vera Institute of Justice, the Prison Policy Initiative, the Drug Policy Alliance and Law Enforcement Action Partnership have long been working to fight overincarceration, although the arguments have always been somewhat theoretical, analogizing to the experience of other countries or arguing the counterfactual about the likelihood of crime if fewer people were jailed.

One benefit of the pandemic (yes, there is one) is that we can now get real data on alternatives to incarceration. We are, in effect, running a giant nationwide natural experiment. For each jurisdiction, we will know the date on which release policies were temporarily changed, and can look at subsequent trends in court appearance, recidivism and crime. Crime may well be depressed overall if more people stay home, but these data can be compared with jurisdictions that chose to stick with business as usual. We can also track data from jurisdictions that do or do not keep new release policies in place after the pandemic ends.

It’s a big statistical task, but it can inform decisions about whether we all simply revert to “business as usual” once the pandemic ends. We can test our assumptions about the pluses and minuses of incarceration, and adopt statutes and practices that are grounded in data rather than either wishful or sky-is-falling thinking.

Inge Fryklund is a former Cook County Assistant State’s Attorney and is a board member of the Law Enforcement Action Partnership, a nonprofit of law enforcement officials who advocate for criminal justice reform.