The COVID crisis has been a wake-up call like no other for our nation's prisons and jails. Even for a government sector accustomed to making headlines for unflattering reasons, the virus has presented a string of unceasingly bad news. As of early September 2020, prisons and jails accounted for 44 of the top 50 coronavirus hotspots in the U.S. Both their infection rate and their death rate far outpace those in the free community. In fact, a study published in the Journal of the American Medical Association found that people in U.S. prisons are 550 percent more likely to contract COVID and 300 percent more likely to die from it than their free world counterparts. What's more, the virus' toll in corrections facilities continues to grow, and the curve shows no signs of flattening.
|Full Report (University of Texas Libraries)|
We look to our corrections system as part of our nation's public safety network, yet it seems to be failing terribly at that mission. Not only are incarcerated people—disproportionately elderly, Black, and with pre-existing medical conditions—getting infected and dying at unprecedented rates, but so are the people who work in these facilities. And the coronavirus is spreading into nearby communities. There have also been reports of violence and riots breaking out in facilities where the virus is prevalent and where stress levels run high. Beyond these physical manifestations of harm, the COVID crisis has led to curtailment of rehabilitative programs inside facilities and reduced contact between incarcerated people and their families, both of which can contribute to higher recidivism rates.
All of this harm was entirely predictable. Experts warned early on that corrections facilities would be petri dishes—essentially, cruise ships on steroids. Prisons and jails are densely populated facilities where social distancing is all but impossible, with poor sanitary conditions and limited access to hygiene and cleaning supplies. They hold increasingly high numbers of elderly individuals and those with serious medical conditions. The high churn of people in local jails creates a constant risk of spread from the outside to the inside and vice versa, and the comings and goings of staff present an ongoing risk of exposure for people in custody. In short, incarcerated people are a very vulnerable population in a very risky environment, who are unable to protect themselves.
COVID laid bare a multitude of serious problems in our system of mass incarceration in this country, including the gross racial inequities in who we lock up; the poverty that determines whether someone remains jailed or is released; our excessive thirst for punishment that requires people to remain incarcerated long past their crime-prone years; and the unhealthy and unsafe conditions of confinement in these institutions.
The pandemic has also driven home some critical lessons. First, there is no bright line between our correctional facilities and our communities. What happens behind the razor-wire fence doesn't stay behind the razor-wire fence. Unhealthy prisons and jails mean unhealthy communities. What happens inside these facilities matters—and should matter—to all of us. Prisons and jails need to be more transparent.
Second, both incarcerated people and staffs have a mutual interest in ensuring safe and healthy facilities. Viruses don't care which side of the metal bars you're on.
COVID laid bare a multitude of serious problems in our system of mass incarceration in this country.
Third, the reason these facilities are so densely populated is that we lock up far too many people for far too long. We demand a pound of flesh, even when a person presents no further risk to the community or when social services such as mental health treatment, drug treatment, housing, or job training would be a better fit. Our deeply punitive policies—which also play out in the form of dehumanizing conditions behind bars—have stood in the way of more thoughtful, appropriate, and cost-effective measures that can save lives.
The COVID crisis offers us an opportunity to learn from these lessons and re-envision and transform our corrections system. We must work to create a model that incarcerates fewer people, that is fairer and more equitable, and that is less punitive, less traumatizing, safer, and healthier for people in custody and staff alike. We need to evaluate the operations of our prisons and jails through a public health lens and ask questions about how our policies and institutions affect the health and well-being of people who are incarcerated, as well as their families, their communities, and the staff who supervise them. Our goal must be to create more resilient individuals, families, and communities. Only in this way can we achieve the public safety mission to which our criminal justice system aspires.
The Action Plan
Depopulate facilities and avoid unnecessary incarceration. To prevent a COVID catastrophe, the number-one recommendation of every corrections expert was to depopulate prisons and jails to enable at least a modicum of social distancing and to better protect the most vulnerable people in custody. While some states and counties followed this guidance, most did not, and tragic results predictably followed.
As we look to a post-COVID world, we need to adhere to this public health guidance. The U.S. incarcerates more people than any other country on the planet, and we gain very little public safety benefit from the disproportionately long sentences we impose. We should not be incarcerating people who do not present a significant risk to our communities. And for those we do incarcerate, we should impose shorter sentences and release them when they no longer pose risks to public safety. Above all, we need to invest in communities and make social services available to all so that our jails and prisons are not used as a substitute for a social safety net.
The COVID crisis offers us an opportunity to learn from these lessons and re-envision and transform our corrections system.
To help reduce the populations of prisons and jails (and save taxpayers' money in the process), every jurisdiction should implement these policies at a minimum:
- Law enforcement should expand use of "citation and release" practices to avoid jailing people charged with minor offenses.
- Courts should expand the use of personal bonds so no one remains in jail solely because they cannot afford to make bail.
- Prosecutors should seek, and judges should impose, significantly shorter sentences; sentences of more than 20 years should be reserved for the most extreme cases and many more individuals should receive non-custodial sanctions.
- Legislatures should establish routine processes that allow for the early release of individuals who no longer present a risk to the community due to their age, health condition, or rehabilitation, with no exclusions due to the nature of the crime.
- People approved for parole should be released quickly, rather than being required at that point to begin and complete programs prior to their actual release. Such programs should be offered at an earlier stage of incarceration, not at the tail end, which simply delays release and increases costs for taxpayers. If more programming is necessary after the release decision is made, those programs can be completed in the community rather than in prison.
- Legislatures should expand compassionate release programs, including options for releasing individuals who are medically vulnerable during a pandemic, with no exclusions due to the nature of the crime.
Improve conditions of confinement. Improving conditions in our nation's prisons and jails is no easy task, but we must begin by recognizing the immense harm and trauma caused to people who live and work in places that are unhealthy, unsanitary, crowded, dangerous, and dehumanizing. The goal of public safety is undermined when people emerge from these settings worse than when they entered. We must shift from the punitive mindset that says that people should suffer while incarcerated to the perspective that separation from the community is punishment enough, and the focus during that time should be on building wellness and resiliency. Most immediately, though, the objective is harm reduction through the following measures:
- Ensure incarcerated people have easy access to hygiene and cleaning supplies, and that both residents and staff have sufficient PPE.
- Provide more single cell housing, offer privacy partitions in dorms, and eliminate crowded congregate housing areas.
- Provide higher-quality, healthier food, including fresh fruit and vegetables, in sufficient quantities.
- Recognize the different needs of women in custody and develop separate programs, services, and policies to address their needs.
- Eliminate the use of long-term solitary confinement, which has been shown to exacerbate mental health problems.
- Offer work opportunities that teach meaningful skills, and pay incarcerated people for their work so they can contribute to their families and save money for their release.
- Provide staff with better working conditions and sufficient pay so they feel safe, do not need to work overtime to make up for understaffing, and do not feel tempted to engage in illicit activities on behalf of residents.
- Work toward a culture shift that values more normalized, helpful, and trauma-informed interactions between staff and residents rather than the control-oriented and dehumanizing dynamics that mark most correctional environments.
- Expand access to education and the arts, including theatre and music programs; establish creative and healthy outlets for residents; and develop programs that provide residents with increasing levels of responsibility.
Strengthen relationships between incarcerated people and their families. Successful reentry so often relies on healthy family relationships. Yet the barriers to maintaining family ties are immense: long distances for families to travel to the facilities for visits; massively expensive phone calls; facility lockdowns; bureaucratic restrictions; and suspension of visitation due to COVID. To help build the resiliency of families and promote public safety, corrections officials should:
- Offer video visitation as a supplement to in-person visitation, or as an alternative while COVID restrictions are in place.
- Provide increased access to phones for people in custody, including those in restricted housing.
- Prohibit predatory pricing for all methods of communication between incarcerated people and their families.
- Provide families with routine information about what is happening in the facilities and any changes to operational policies that affect their loved ones.
Use technology to expand delivery of programs and services to people in custody. COVID restrictions led to the suspension of most programs and many services in prisons and jails. Not only does this suspension deny incarcerated people the education and treatment programs they need to reduce their likelihood of recidivism, but idleness in custody is a recipe for increased misconduct, tension, and violence. Technology offers the opportunity to expand these offerings, even after COVID restrictions are lifted, increasing safety and security in the facilities and improving the resiliency of people who are incarcerated. Corrections officials should explore the potential to:
- Provide residents with computer tablets (with all necessary security precautions installed) to enable personalized educational and rehabilitative programming.
- Expand access to health care and mental health care through telehealth and tele-mental health services.
Enhance transparency of prisons and jails. Prisons and jails are extraordinarily opaque institutions that exercise enormous control over the lives of the people inside them. Shining a spotlight on what happens behind bars helps protect incarcerated people, provides critical information to policy makers and the media, and helps spread guidance about best practices. The American Bar Association has called on every jurisdiction to establish independent government bodies to conduct routine monitoring of prisons and jails, and has detailed the key elements of effectiveness. Yet in contrast to other Western nations, the U.S. has few examples of robust independent correctional oversight bodies. Beyond this lack of oversight, we do not even require the reporting of key indicators of safety and health behind bars.
To help ensure safer and healthier prisons and jails, policy makers should:
- Establish one or more independent oversight bodies in every state to conduct routine preventive inspections of prisons and jails, and report publicly on the treatment of people in custody.
- Require the collection and public reporting of data about health and safety issues in prisons and jails.
The ultimate lesson of the COVID crisis in our prisons and jails is this: Addressing the issues it has surfaced is not just a good idea, it is a moral imperative. We need to have the vision and courage to correct corrections and work toward a system that is more worthy of our values and ideals—one that uses a public health lens to help build resiliency. For that is the true underpinning of a safer community.
Michele Deitch is a Distinguished Senior Lecturer at the Lyndon B. Johnson School of Public Affairs (with a joint appointment in the School of Law), at the University of Texas at Austin. She is currently directing the COVID, Corrections, and Oversight Project at the LBJ School of Public Affairs at The University of Texas at Austin.
 "Coronavirus in the U.S.: Latest Map and Case Count," New York Times, Updated September 6, 2020, 1:33 A.M. E.T. https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html
 Saloner B, Parish K, Ward JA, DiLaura G, Dolovich S. "COVID-19 Cases and Deaths in Federal and State Prisons." JAMA. 2020;324(6):602–603. https://jamanetwork.com/journals/jama/fullarticle/2768249
 Ollove, M., "How COVID-19 in Jails and Prisons Threatens Nearby Communities," Pew Charitable Trusts, July 1, 2020. https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/07/01/how-covid-19-in-jails-and-prisons-threatens-nearby-communities
 See, e.g., Blakinger, K. "Coronavirus Restrictions Stoke Tensions in Lock-ups Across U.S.," The Marshall Project, April 4, 2020. https://www.themarshallproject.org/2020/04/02/coronavirus-restrictions-stoke-tensions-in-lock-ups-across-u-s
 American Bar Association, Criminal Justice Section, Key Requirements for the Effective Monitoring of Correctional and Detention Facilities 1 (Aug. 2008), http://www.ongov.net/jcoc/documents/ABAResolutionandOversight104b.Final.2008.pdf
 Deitch, M. "But Who Oversees the Overseers?: The Status of Prison and Jail Oversight in the United States," 47(2) Amer. J. Crim. L. ___ (forthcoming 2020).