Five ways the criminal justice system could slow the pandemic

by Peter Wagner and Emily Widra

We previously published a list of common sense reforms that could slow the spread of the virus in jails and prisons. In light of the rapid spread of COVID-19 throughout the U.S., and specifically in prisons and jails, we found it necessary to update these recommendations with more detail about who has the power and responsibility to enact policy change, and how to reform the criminal justice system in the midst of a public health crisis.

Quick action is necessary for three reasons: Correctional staff and incarcerated populations are already testing positive, the justice-involved population disproportionately has health conditions that make them more vulnerable, and the staffing resources required to make policy changes will be depleted long before the pandemic peaks.

The incarcerated and justice-involved populations contain hundreds of thousands of people who may be particularly vulnerable to COVID-19, including those with lung disease, asthma, serious heart conditions, diabetes, renal or liver disease, and with other immunocompromising conditions. Protecting vulnerable people will not only improve outcomes for them, but will also reduce the burden on the healthcare system, protect essential correctional staff from illness, and slow the spread of the virus.

Health conditions that make respiratory diseases like COVID-19 more dangerous are far more common in the incarcerated population than in the general U.S. population.

The final reason to move quickly is that, even under normal circumstances, establishing and implementing new policies and practices is something that the government finds challenging to do on top of its other duties. Now that the number of COVID-19 cases is higher in the U.S. than any other country, we know that more people will continue to be directly impacted by illness, including policymakers and government leaders. With the possibility of up to 40% of government lawyers and other policymakers getting sick or taking care of sick relatives, making policy change is going to be much harder and take far longer. If the government wants to protect both justice-involved people and their already overstretched justice system staff from getting the virus and spreading it further, they need to act now.

Here are five places to focus:

1. Reduce the number of people in local jails.

State leaders must remember that local jails are even less equipped to handle pandemics than state prisons, so it is even more important to reduce the burden of a potential pandemic on jails. Generally speaking, there are two ways to reduce jail populations: reduce admissions or release more people.

Reduce admissions. This may be the simplest strategy that would show quick results because of the high turnover in jails. If a typical jail stopped admitting people entirely, its population would be cut by 54% in just 7 days. More realistically, if that same jail could reduce admissions by just half, its population would be more than 25% smaller in a week. Different actors within the system can achieve this using their discretionary powers:

• Police can reduce the number of arrests, particularly for what they determine to be "petty offenses."
• Prosecutors can refuse to prosecute certain offenses and consent to release on one's own recognizance (ROR) most or all people charged with crimes. They can defer prosecution, dismiss charges outright, or instead refer defendants to social services or other alternatives to incarceration or detention.
• Courts can vacate "bench warrants" (warrants for unpaid court fines/fees and for failure to appear for hearings) so that law enforcement can focus on public safety concerns and so that people with active bench warrants do not avoid seeking medical attention for fear of arrest. Recognizing the extreme economic stress that most low-income people will experience during this time, courts should refuse to jail anyone for unpaid fines and fees, automatically postpone any court hearings related to fines and fees, or just proactively forgive these debts.
• Jails can refuse to rent space to other agencies. In some states, as much as 8% of the capacity is dedicated to USMS, 10% to ICE, and 66% to state prisons. In addition, jails should refuse to admit people accused of violating technical rules of their state probation or parole. As we recently found, technical violators can make up a huge part of a jail's population.
• State and local legislatures can expand the list of "non-jailable" offenses, which are not subject to arrest but can only be fined or cited.

Release more people. Jail administrators can also accelerate releases of people currently in custody. In situations where administrators and sheriffs may not have the authority to do this on their own, they are still well positioned to suggest to courts, prosecutors and defense attorneys who could be released. Here are some suggested categories for release eligibility:

• People nearing the end of their sentence. 35% of people in jails are serving a sentence, typically under a year. That means that nationally, roughly 75,000 people in jail today are within 3 months of their release date.
• People who are medically fragile, including older people (there are 20,000 people over the age of 60 in jails) and people with chronic illnesses, especially those that have higher mortality risks from COVID-19, like chronic lung disease, moderate to severe asthma, serious heart conditions, diabetes, renal failure, liver disease and the immunocompromised, including those undergoing cancer treatment. Facilities should also release pregnant women.
• People held on low bail amounts. Sadly, bail is often used as a wealth test for freedom rather than a test of dangerousness or likelihood to show up for court. But consider this: if your facility is currently holding people who would be released if they could come up with a small amount of money, why are you still holding them? Once bail has been set, the court has already concluded that the individual is not a threat to public safety, since bail is meant to incentivize court appearance, not to detain people the court considers dangerous. Prosecutors, defense attorneys, judges, and the jails -- preferably in cooperation with each other -- need to generate a list of people whose bail should be lowered to $0 and then make sure those people are released as soon as possible.
• People held for offenses that would not result in detention if they were arrested today, now that some offense-based changes have already been implemented in response to the pandemic.

2. Reduce the number of people in state and federal prisons.

This can be done through some restrictions to admissions and most dramatically by increasing releases.

The simplest way to reduce admissions is to refuse admissions for technical violations of probation and parole rules. In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.

The decision to reduce admissions for technical violations can be made at the level of individual parole or probation officers, at the supervisory level, at the level of parole and probation boards, or at the level of state and county executives and legislatures. Any and all of these actors should take immediate action.

Other groups that states should immediately consider for release include:

• People nearing the end of their sentence. Approximately 600,000 people are released from prison every year. If they are going to be released within the next few months anyway, why not release them now?
• People in minimum security facilities and who are on work-release.
• People who are medically fragile or are older. Prisons house large numbers of people with chronic illnesses and complex medical needs that make them more vulnerable to becoming seriously ill and requiring more medical care for COVID-19. (There are 132,000 people who are at least 55 years old in state prisons. The prevalence rates of chronic health conditions that put people at risk for serious complications from COVID-19 are higher in state and federal prisons than the general population.)
• Anyone whose offense is considered "minor" or anyone who has a "low likelihood" of committing another serious offense.

States have many options for how to release these individuals. Mechanisms for increasing releases include:

• Parole boards can parole more people who are parole eligible, and they can accelerate the normal review process, reduce the time between parole reviews, and eliminate the often months-long delays between parole decisions and actual release.
• Governors can grant partial clemency to people who are a short period away from parole eligibility so that the parole board can consider them for release now.
• Governors, legislatures and other agencies can change good-time formulas to allow people additional credit for time served. Commonly called things like "good time," "meritorious credit" or something similar, these systems shorten the time incarcerated people must serve before becoming parole eligible or completing their sentences. Many states give correctional agencies some discretion on awarding good time. The maximum allowed should be granted, and the formulas should be changed to make the rewards more generous.
• Governors can explore letting some people go on temporary furloughs who already meet most other criteria for release. (This used to be common in the U.S., and in response to the pandemic, Iran temporarily released 85,000 people and Ethiopia released 4,000 people.)
• Judges can resentence individuals to make them eligible for release on parole or on completion of the revised sentence.
• ICE, the U.S. Marshals Service and other agencies that send detainees to local jails for confinement can order their release, just as they should do for the people confined in the facilities that they run. These systems should not think for a moment that just because they have outsourced the jailing of these detainees, they are exempt from their moral and public health duty to reduce the density of correctional facilities.

3. Eliminate unnecessary face-to-face contact for justice-involved people.

The criminal justice system makes it difficult for people on probation, parole, and registries -- and the staff of those systems -- to practice the social distancing necessary to prevent the spread of COVID-19. There are at least 7 strategies that probation, parole, registries and the courts can implement to promote social distancing:

• Judges should postpone as many court sessions as possible. They should do so automatically and in advance. Courts should be reluctant to try cases or hold hearings over video monitors, and they should never consider detaining someone they do not feel comfortable -- for public health reasons -- having in their court room.
• Reduce the number of people on the probation and parole rolls. This would reduce the number of people subject to the conditions of probation and parole, which often contradict social distancing guidelines (i.e. required in-person meetings with parole or probation officers), and would free up probation and parole staff to focus limited resources on the higher-need people who remain under their supervision. This may require help from the governor via mass clemency, the legislature, or the courts, and could also involve strategies like applying time-served credits for successful past compliance with probation or parole restrictions.
• Reduce, rather than expand, use of GPS/electronic monitoring. Electronic monitoring requires correctional staff to install (and maintain) the devices and thus to violate social distancing guidelines. Because these devices require monitored people to request permission to leave their designated areas -- a process which can take days -- electronic monitoring will restrict people from seeking appropriate medical treatment, not to mention imposing additional user fees payable to the monitoring companies that low income people struggle to pay during the best of times.
• Minimize in-person requirements. Parole and probation offices should limit face-to-face meetings (especially in crowded offices), suspend on-site drug testing, and limit home visits.
• Courts should cancel pretrial meetings, court-ordered classes, collection of court debt, and all collateral consequences for failure to pay fines and fees.
• Courts, probation offices, and parole offices should eliminate supervision fees, including those that are paid to third-party monitoring services. Under the additional financial pressure created by the pandemic, many more people under supervision will be unable to afford fees, which will put them at risk of arrest and incarceration. This isn't a good use of criminal justice resources right now.
• When faced with technical violations of parole or probation rules -- behaviors that, for people not on parole or probation, would not warrant incarceration -- police should refuse to arrest, jails should refuse to admit, and parole/probation boards should not consider revocation. If necessary, alternative sanctions should be imposed that can be complied with from home, such as completion of an online course or more frequent phone/video check-ins.

4. Make correctional healthcare humane (and efficient) in a way that protects both health and human dignity.

Both incarcerated people and staff would benefit from a health care system that prioritizes human life and dignity over money. Here are some ideas:

• Eliminate medical copays that deter people from seeking healthcare in prison and jail. As of March 27, Hawaii, Kansas, and Nevada state prisons are still charging copays, and Delaware, Maryland, Oklahoma, and Utah have at least twice failed to respond to our inquiries about their copay policy during the pandemic. (For the current status of all states see the copays section of our virus response page.)
• Ensure that staff have sufficient paid sick leave and encourage staff to stay home if they or anyone in their family shows symptoms. Making the necessary changes to reduce overcrowding (and confinement overall) will greatly reduce the need for over-burdened administrators to ask staff to work when sick.
• Provide for basic healthcare needs behind bars, starting with the basic requisites for effective hand-washing. Stop charging incarcerated people for basic products that can protect them from illness. People in prison should not be reliant on COVID-19 fundraisers for necessities such as soap.
• Ensure that facility overcrowding never reduces the quality of the health care provided. When overcrowding or budget concerns impact health care, the first response should always be to reduce the facility population until health care can meet constitutional standards.
• Staff in courts, prisons, and jails should ensure that incarcerated people's health concerns are taken seriously.
• Ensure that the physical and mental health--and human dignity--of people who remain in prison is protected. Particularly helpful is the 40 point checklist prepared by the Washington State Office of Corrections Ombuds, based on the CDC's guidance to correctional facilities.

5. Don't make this time more stressful for families (or more profitable for prison telephone providers) than absolutely necessary.

For people in the free world, communication is almost free, but for the families of incarcerated people, phone calls, video calls and emails are quite expensive. At this time of great stress for everyone, the facilities need to do better:

• Provide unlimited, free phone calls so that families can maintain contact throughout the pandemic when visitation is suspended. Allowing people to assure themselves that their families are safe will greatly reduce stress and anxiety, which, due to the pandemic, are sky-high inside prisons and jails.
• Facilities that do not have video calling systems already in place should temporarily refit the now-empty visiting rooms to support free video calling options with publicly available services like Zoom and Skype. These services can often be installed quickly without the involvement and costs of the prison telephone industry giants.

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Since our first coronavirus briefing at the beginning of March, we have been tracking how federal, state, and local officials have responded to the threat of COVID-19 in the criminal justice system. A number of jurisdictions have taken quick and laudable actions to protect the most vulnerable justice-involved people, including reducing the number of arrests and bookings, releasing people held pretrial, reducing admissions to state prisons, and suspending medical copays in most states. Given the toll COVID-19 has already taken on our jails and prisons, as well as our society at large, the time is now for federal, state, and local officials to put public health before punishment.

For the footnotes and other resources, see the web version of this briefing.