Failing Grades: States’ Responses to COVID-19 in Jails & Prisons

In this new 50-state report, the Prison Policy Initiative and the ACLU grade states on the action they have taken to slow the spread of the pandemic in prisons and jails and avert a human tragedy.

by Emily Widra and Dylan Hayre

When the pandemic struck, it was instantly obvious what needed to be done: take all actions possible to “flatten the curve.” This was especially urgent in prisons and jails, which are very dense facilities where social distancing is impossible, sanitation is poor, and medical resources are extremely limited.

Public health experts warned that the consequences would be dire: prisons and jails would become petri dishes where, once inside, COVID-19 would spread rapidly and then boomerang back out to the surrounding communities with greater force than ever before.

Advocates were rightly concerned, given the long-standing and systemic racial disparities in arrest, prosecution, and sentencing, that policymakers would be slow to respond to the threat of the virus in prisons and jails when it was disproportionately poor people of color whose lives were on the line. Would elected officials be willing to take the necessary steps to save lives in time?

When faced with this test of their leadership, how did officials in each state fare? In this report, the ACLU and Prison Policy Initiative evaluate the actions each state has taken to save incarcerated people and facility staff from COVID-19. We find that most states have taken very little action, and while some states did more, no state leaders should be content with the steps they’ve taken thus far. The map below shows the scores we granted to each state:

For the details of each state’s score, see the appendix. *This report does not provide a grade to Illinois because some of the relevant data is the subject of pending litigation.

The results are clear: despite all of the information, voices calling for action, and the obvious need, state responses ranged from disorganized or ineffective, at best, to callously nonexistent at worst. Even using data from criminal justice system agencies — that is, even using states’ own versions of this story — it is clear that no state has done enough and that all states failed to implement a cohesive, system-wide response.

In some states, we observed significant jail population reductions. Yet no state had close to adequate prison population reductions, despite some governors issuing orders or guidance that, on their face, were intended to release more people quickly. Universal testing was also scarce.

Finally, only a few states offered any transparency into how many incarcerated people were being tested and released as part of the overall public health response. Even in states that appeared, “on paper,” to do more than others, high death rates among their incarcerated populations indicate systemic failures.

The consequences are as tragic as they were predictable: As of June 22, 2020, over 570 incarcerated people and over 50 correctional staff have died and most of the largest coronavirus outbreaks are in correctional facilities. This failure to act continues to put everyone’s health and life at risk — not only incarcerated people and facility staff, but the general public as well. It has never been clearer that mass incarceration is a public health issue. As of today, states have largely largely failed this test, but it’s not too late for our elected officials to show that they can learn from their mistakes and do better.

Methodology & Scoring

Composite score:

The final composite score for each state equals the total of all points received ranging from zero to 485. To make the scores easier to read, we then divided the final number of points by 4.85 to give each state a grade on the scale of 0-100. Because every state scored so poorly, we decided to adjust the traditional school grading scale down to create some meaningful differentiation in the scores, and to better identify the states that, despite falling far short of these minimum standards, did make some notable strides. This differentiation and specificity is important because this report, while assessing what has happened thus far, should also help create a blueprint for what states can do to save lives as the pandemic continues.

How we graded and what distinguishes a higher score:

To assess the degree to which each state has responded to the COVID-19 pandemic and the particular threat of viral infection behind bars, we looked at whether:

• The state Department of Corrections provided testing and personal protective equipment (PPE) to correctional staff and the incarcerated population. (maximum 65 points)
• The state reduced county jail populations and state prison populations. (maximum 300 points)
• The governor issued an executive order — or the Department of Corrections issued a directive — accelerating the release from state prisons of medically vulnerable individuals and/or those near the end of their sentence. (maximum 60 points)
• The state published regularly updated, publicly available data on COVID-19 in the state prison system. (maximum 60 points)

Recognizing that no metrics can account for all differences between states, including the fact that the virus reached some states earlier than others, we then deducted points from the final scores of states that have had COVID-19 deaths in their state prisons.

Information regarding testing, personal protective equipment (PPE), and regularly updated, publicly available data was collected from the states’ Department of Correction websites in early June 2020. Some states may have implemented more widespread testing — or are providing PPE to all incarcerated people — but if that information is not clearly shared on their website, we could not include it in our scoring.

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The above is an excerpt from our new report. In the full report, we explain our four metrics of success, and the data we used to calculate each state's score, in more detail. The report also contains an appendix showing how each state scored on each of the four metrics. Read the full report at https://www.prisonpolicy.org/reports/failing_grades.html.