“The coronavirus is going to invade one of the incarceration facilities, and it’s going to spread like fire through a dry barn,” said Holly Harris, president of the criminal justice advocacy group Justice Action Network, on Fox News.
It was 2 a.m. and Harris was speaking on Fox from her home in Lexington, Ky., where she was locked down with her 8-year-old son, who was standing off to the side in his University of Kentucky pajamas, holding up a light for the live shot.
Harris was desperate to get the word out: The United States must address the needs of the 2.3 million people incarcerated in jails and prisons, implement safeguards, and transfer to home confinement those who are locked up on nonviolent charges and susceptible to catching the disease.
The coronavirus has already found its way into correctional facilities across the nation — and while those embers are now smoldering, soon there will be no stopping the spread, say Harris and others.
Reports are increasing across the country: more than 300 people inside New York’s jail system, including 167 in custody. More than 130 incarcerated in the Cook County Jail in Chicago. Dozens in a federal prison in Louisiana. Twenty-two people in Georgia’s prisons and jails, including staff. All testing positive for coronavirus. In New York City, two corrections staff members have died from the disease, as have incarcerated people in Louisiana and Illinois.
Advocacy groups are making calls, writing op-eds, appearing on TV, and lobbying lawmakers — anything and everything they can do to fight on behalf of a community that sits helpless in facilities across the nation: the local jails where the incarcerated await trial or serve short sentences and the state and federal prisons that confine those convicted of crimes long-term.
There has been hesitancy from many governments to take action, particularly when it comes to releasing incarcerated people. There’s the concern that if people are sent home, they may not show back up in court when the crisis is over or they may commit another crime while out. As Anderson County, S.C., Sheriff Chad McBride put it to USA Today: “Half of these guys are going to be back in jail in weeks.”
In states like Texas and Pennsylvania, opposition to compassionate release has been framed as an issue with who is allowed to make decisions: Harris County Judge Lina Hidalgo’s compassionate release order for the Harris County jail has been challenged by Texas Attorney General Ken Paxton, who indicated the state may intervene. In Pennsylvania, state Rep. Rob Kauffman wrote to Chief Justice Thomas Saylor arguing against an order to release medically at-risk people, on the grounds that the court doesn’t have the right to make a decision that is “properly the responsibility of the political branches of state government.”
But advocates say the current crisis calls for erring on the side of saving lives.
“Yes, people committed a crime, but they have served their sentence, and their sentence was to lose their liberty — not to lose their life,” said Jessica Jackson, Chief Advocacy Officer for the criminal justice reform organization REFORM Alliance. “And you’re placing them in a position of potentially losing their life.”
Yes, people committed a crime, but they have served their sentence, and their sentence was to lose their liberty — not to lose their life.Jessica Jackson Chief Advocacy Officer, REFORM Alliance
Jackson realized the urgency to act about a month ago, when she and a colleague began hearing from people inside prisons who were concerned about coronavirus and the lack of action being taken.
“As soon as we start thinking of prisons and jails and corona, we’re like, oh my God, it’s going to be a hotbed of the virus,” Jackson said. Right away, they pulled in experts and started to draft an emergency plan.
What emerged was a seven-page policy plan, nicknamed SAFER, outlining the ways governments should address the crisis inside prisons and jails. Broadly, the plan calls for the release of the elderly and vulnerable to home confinement; suspension of jail for technical violations, such as missed probation office visits and unpaid fines; access to hand sanitizer, soap, and protective gear; and extra precautions for corrections officers and staff.
REFORM Alliance and other advocacy groups — including Harris’ bipartisan Justice Action Network — have been working around the clock to get the plan into the hands of governors and federal lawmakers.
There’s No Social Distancing in a Prison
Conditions inside jails and prisons are breeding grounds for a disease like the coronavirus. Most are overcrowded and understaffed. Hand sanitizer is considered contraband because of its alcohol content. And soap and cleaning supplies can be hard to find.
Brett Tolman, a former U.S. Attorney in Utah who now works in public policy and government reform, has for decades been aware of the broken aspects of the criminal justice system, including its subpar system of caring for the health concerns of incarcerated people.
“Now you add the virus on top of it, and it is a powder keg waiting to blow,” Tolman said. “They don’t have in these facilities the ability to deal with something like this that would rip through the prison system.”
And forget about social distancing when people are crammed into small cells.
Jeremy Travis, Executive Vice President of Criminal Justice at Arnold Ventures, said that no matter how successful efforts are to get more people out of prisons and jails during the health crisis, it will be imperative to address the conditions for those who remain.
“No matter what we do, no matter the best efforts of the advocacy community, there will still be people in jails and prisons who are at great risk of themselves contracting the coronavirus and in institutions where the structure and the staffing and the resources of the institution create an environment where any risk is too great,” Travis said.
Locals Leading the Charge
State and local governments have been the quickest to respond to the coronavirus threat.
Cities and counties across the country are sending home some of their incarcerated population who are locked up on nonviolent offenses. A county in Wisconsin said it would only accept new lock-ups if the person was accused of a violent felony or misdemeanor that posed a threat to public safety. The Maine court system vacated 12,420 warrants for unpaid fines and fees and for failure to appear. The chief justice of the Montana Supreme Court asked judges to review jail rosters and “release, without bond, as many prisoners as you are able.” Ohio did the same. And the list grows by the day.
“It is unreal what is happening at a grassroots and local level across the country in terms of efforts to safely reduce incarceration,” Harris said. “All of this is prosecutors working with public defenders, working with judges, they’re all working together.”
In Kenton County, Ky., Commonwealth’s Attorney Rob Sanders started taking action March 13. Though there hadn’t been a confirmed case of the coronavirus anywhere near his county at that point, there was one in the state. At his last in-person staff meeting before offices shut down, he charged his staff with getting as many people out of Kenton’s jail as they safely could.
For the past two weekends, Sanders sat in his home, his eyes bleary as he read through line after line of the incarceration roster, looking at each person jailed in Kenton County and questioning if they could safely be released.
While some cities and counties can make a big dent in their jail populations by letting out those who are locked up pretrial because they can’t afford bail, it was more of a challenge for Sanders because his county already has low or no bail for low-level, nonviolent offenses. Most of the people he was looking at for release had already violated the terms of their bonds or jumped bail previously or were arrested on a new felony arrest while they were out on bail. But Sanders knew that if he didn’t take action, the outcome could become catastrophic in his jail.
Sanders is approaching the exercise cautiously with a lot of deference toward the charges people are facing. Those accused of crimes against children, sex offenses, and violent offenses will not be getting out. Many of the cases he’s looking at are for drug and property crimes.
Since March 13, Kenton County has dropped 289 people from its roster — about 40 percent of its jail population. It’s the first time the jail has been below capacity since it was built. And all but one person have remained compliant.
Sanders stresses that he’s a law-and-order, tough-on-crime prosecutor, not someone who is typically in favor of sweeping criminal justice reform. But these are extraordinary times.
“Many of these offenders, they deserve some punishment for the crimes they’ve committed, but they don’t deserve the death sentence,” Sanders said. “And I’m just afraid that if we keep them all locked up and this virus gets in the jail, we’ll be sentencing many of them to die.”
Travis, of Arnold Ventures, said judges, prosecutors, and police have also been instrumental in slowing the flow of new cases into the court system by prioritizing arrests for crimes of violence.
“It shows real leadership,” Travis said, “when a community comes together and says, in this time of crisis, we are not going to put some of our fellow citizens at great risk by housing them in facilities where the exposure to the virus is greatest.”
Groups that might normally sound an alarm about releasing incarcerated populations — such as victims’ advocacy groups including the National Center for Victims of Crime, RISE, and the National Organization for Victim Assistance — seem to recognize the magnitude of the threat and the urgent need for action. Even the strident Marsy’s Law for All, in letters urging South Dakota and North Dakota leaders to include victim input in COVID-19-related release decisions, said it “appreciates the need to take extraordinary measures to prevent the spread of COVID-19.”
Waiting on the Federal Government
While states and localities continue to react, advocates are growing more frustrated with the federal government for its lack of response.
“States, even conservative states, have seen this as a real issue and are adjusting their policies and trying to deal with their elderly populations that are incarcerated in order to slow this thing down, but the feds are not,” said Tolman, the former U.S. attorney in Utah. “In fact, DOJ is doubling down in trying to get more tools to incarcerate. It’s as if they’re not speaking the same language or understanding or watching the same thing that everybody else is watching.”
A key part of the SAFER plan — releasing the elderly and vulnerable to home confinement — is not far beyond what Congress already enacted in its 2018 First Step Act. The Elderly Home Detention Pilot Program, which was reauthorized and expanded as part of First Step, allows those in federal prison on nonviolent convictions to be transferred to home confinement if they are at least 60 years old and have served at least two-thirds of their sentence.
Advocates say more needs to be done. Lower that threshold to 55 — which data shows is the age at which recidivism drops drastically. Include those whose health makes them more susceptible to contracting coronavirus. And allow incarcerated people to take home confinement requests directly to a judge if the Bureau of Prisons doesn’t take action.
Last week, as part of its COVID-19 response package, Congress expanded the BOP’s ability to transfer those imprisoned on nonviolent offenses to home confinement. Attorney General William Barr sparked hope among advocacy groups when he asked BOP officials to identify those who are elderly or have compromised immune systems and consider releasing them into home confinement. But criminal justice reform groups say the plan involves even more red tape, restrictions, and false hope.
This follows news earlier in March that the Justice Department had asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies like the coronavirus.
“Not only are they not willing to work on efforts to safely reduce incarceration, they’re talking about unconstitutionally detaining more people who have not been convicted of crimes,” Harris said. “It’s reckless, it’s not in the best interest of public safety or public health, and God save us all if the DOJ has their way, because not only will we be deviating from what health experts are telling us to do, but we’ll also be deviating from our Constitution.”
In light of the first incarcerated person to die from coronavirus in a U.S. federal prison, Jackson of REFORM Alliance said it’s urgent for the president, the DOJ, or Congress to act further.
“It’s heartbreaking,” she said. “I had a call yesterday from a guy in a prison in San Quentin and he was literally crying. He was like, ‘I’m going to die in here.’ Which is just terrifying to hear.”
Not About Criminal Justice Reform
What the nation needs to realize, advocates stress, is that it’s not just incarcerated people who are affected by the coronavirus inside prisons and jails.
“Everybody keeps arguing back and forth about whether we should care for incarcerated people,” Harris said. “Well, care about yourselves, because if you think it’s just going to be incarcerated people who will be impacted, you really don’t understand how this disease spreads. It will go to correctional officers; obviously it will impact prison staff and then ultimately the surrounding community; and then it goes from there.”
This action being urged is not about criminal justice reform, Harris said.
“This is a global health crisis that just goes beyond whether you’re for criminal justice reform or not,” she said. “I hope we act in a way that’s responsible before it’s too late.”