The Coronavirus Pandemic Makes the Case for Criminal Justice Reform

The rapid spread of the novel coronavirus in the United States is expediting criminal justice reforms that advocates have pushed for decades. At least nine prosecutors are now fast-tracking reforms to reduce the number of incarcerated people kept in conditions that can speed the rate of infection, and to stop new prosecutions of low level nonviolent offenses.

For reformers, scholars, and elected officials alike, swift changes from prosecutorial offices across the country raise the question: Why not earlier? And with those changes in place, can things go back to the way they were?

“There is a real question that needs to be asked after this crisis is over about sort of reimagining what our justice system looks like,” said Lauren-Brooke Eisen, director of the Brennan Center’s Justice Program.

“This is gonna be a really important moment for criminal justice reform where a lot of police, prosecutors, corrections agencies say, ‘Let’s not go back,’ — this is our hope, right? Let’s not go back to where we were,” Eisen said.

Close and often unhygienic quarters can compound the spread of a disease. That makes prisons potential hot spots for the spread of the new coronavirus — and increasing numbers of cases are being documented. The number of cases at Rikers Island in New York City, for example, ballooned from 29 on Sunday to at least 80 inmates and staff by Tuesday; one corrections officer died earlier this month. The first positive coronavirus tests in Philadelphia jails were reported Friday.

“It’s really frustrating that the couple weeks we had when we could have ramped up to get people out before today were not used as efficiently as they could have been,” Philadelphia District Attorney Larry Krasner told The Intercept. He called on Gov. Tom Wolf and Attorney General Josh Shapiro to step up. “The police commissioner, the public defender, and the district attorney’s office have been on this for a couple weeks making difficult decisions,” Krasner said.

The danger of the pandemic has led some prosecutors — especially a new crop of self-styled progressive prosecutors like Krasner in Philadelphia, Marilyn Mosby in Baltimore, and Chesa Boudin in San Francisco — to take action in recent weeks to divert people away from prison and release people already there on nonviolent charges for things like drug charges, sex work, and other low-level offenses.

“It’s not every prosecutor across the country, by any means,” Eisen said. “But certainly a significant number of them have started to use their discretion to respond proactively.”

A 2016 report showed that just under 40 percent of people in state and federal prisons were behind bars with no compelling public safety rationale, meaning they could be released while still keeping communities safe, Eisen said. “It is only devastating communities, tearing apart families, increasing intergenerational poverty. And to what end?” The advent of the new coronavirus has made keeping people in prison even more destructive.

Reforms Underway

At least nine prosecutors announced they will not be prosecuting low-level offenses in the wake of the pandemic. Krasner, Mosby, and Boudin were among more than 30 prosecutors who released a joint statement this month urging local officials to implement changes to decrease the number of incarcerated people and curb the potential spread of coronavirus within prisons.

The prosecutors drew a contrast between the treatment of incarcerated people and drastic wider measures like school closures and travel restrictions. “Those measures are all sensible,” the statement reads, “but they also drive home how little attention is being paid to the millions of people in the most overcrowded conditions that are ripe for the spread of this contagious and deadly virus: the people behind bars in America’s jails, prisons, and immigration detention centers.”

Many of the progressive-leaning prosecutors have already taken action. Last week in Philadelphia, Krasner asked the city’s police department to prioritize dangerous offenses over nonviolent arrests in response to the spread of the coronavirus pandemic in the United States. Krasner’s office also announced it would change a series of charging practices to help prevent the virus from spreading. Pennsylvania’s First Judicial District, which covers Philadelphia, has closed its courts until at least April 1. On Tuesday, Philadelphia police officers received a directive to stop making arrests for nonviolent crimes including drug offenses, sex work, retail and auto theft, and vandalism.

Krasner’s office has already identified incarcerated people eligible for potential release, including those over the age of 60 and in mentally fragile states, and shared those records with the city’s Defender Association, which called on judges earlier this month to release eligible people en masse. In an email Monday, Krasner’s office said prison admissions had decreased but discharges had not. By Friday, Krasner’s office said, the number of discharges had improved, but not enough relative to the need.

Unlike in places like New York City and California, the Philadelphia area isn’t yet allowing for prisoners to be released in large groups. Courts are continuing to make rulings on a case-by-case basis. Organizers are putting pressure on Philadelphia Mayor Jim Kenney to take executive action to release prisoners and people in juvenile detention facilities immediately.

“We demand that the First Judicial District work with the District Attorney’s Office and Defender Association, and create policies for blanket release for large categories of people, like Cleveland and Los Angeles,” said Hannah Sassaman, anchor member of the #No215Jail Coalition and policy director at Movement Alliance Project, a Philadelphia-area media and community organizing group. The organization is calling for courts to stop setting any bail for money; lift all probation and parole detainers; start an immediate review process for all people currently detained; and to release the following groups of people: those held because they can’t afford bail, seniors and medically at-risk people, those serving county sentences, and all youth in juvenile detention and adult jails.

Last week in Baltimore, Maryland State’s Attorney Mosby ordered staff to dismiss pending criminal charges including sex work, possession and distribution of drugs including heroin, trespassing, and other nonviolent offenses. Mosby also sent a letter to Maryland’s Republican Gov. Larry Hogan, asking him to release people in the following categories from state prisons: anyone over the age of 60, anyone approved for parole, and anyone scheduled to complete their sentence within the next year. Mosby published an op-ed this week pushing Hogan to “lead by addressing covid-19 in prisons and jails.”

“I firmly believe that we can promote public health and public safety at the same time, and that’s what these new policies will achieve,” Mosby said in a press release earlier this month.

In Prince George’s County, State’s Attorney Aisha Braveboy last week announced plans to seek modified sentencing, reduced bail, and release orders for at least 40 people currently incarcerated for nonviolent offenses.

Last week in Boston, District Attorney Rachael Rollins announced that staff would be making a number of related changes, including seeking two-month continuances in criminal cases where defendants are not currently in custody.

Reformist prosecutors aren’t the only ones pushing for new changes. While district attorneys like Krasner, Rollins, and Mosby have largely set the example for a new kind of approach to criminal justice, localities that have historically had more old-school prosecutors are making similar moves. Earlier this month, a judge in San Antonio, Texas, suspended arrests for minor offenses in Bexar County.

Los Angeles County has released at least 1,700 inmates so far, and is delaying filing new charges, suspending trials, and temporarily closing some courthouses. LA District Attorney Jackie Lacey, who is expected to head to a runoff after a close primary earlier this month, directed employees to consider ways to “consider the health risk in every decision they make.” Attorneys were asked to find ways to keep nonviolent offenders out of prison during the pandemic. On Friday, the chief federal judge for the U.S. District Court for Central California said jurors would not be called for criminal or civil trials until mid-April. No hearings for civil cases will take place until May 1.

Some prosecutors’ offices have been slower to act, despite public pressure. In New York, Queens District Attorney Melinda Katz, who ran as a progressive reformer, has not followed through on a number of campaign promises, including to stop prosecuting some nonviolent offenses, even before the pandemic’s onset. Her former opponent, public defender Tiffany Caban, now a national political organizer for the Working Families Party, slammed Katz for taking two weeks to determine that only 30 people were eligible for release from Rikers. New York City Mayor Bill De Blasio announced Tuesday that the city planned to release 300 people held on nonviolent charges from the facility. Clarise McCants, criminal justice campaign director at Color of Change, a racial justice organization, said de Blasio’s announcement was a step in the right direction but fell “drastically short” of what would be needed to stop the spread of the virus. “There are still close to one thousand more with sentences under one year and detained on technical probation violations. Jails don’t trap disease; they spread it,” McCants said in a press release Thursday.

New York Gov. Andrew Cuomo has said he doesn’t have jurisdiction to release incarcerated people. He’s also pushed to roll back new bail reforms. In a widely controversial move, Cuomo recently announced that the state’s incarcerated population would be making hand sanitizer to help deal with the pandemic. Vice later reported that they were actually just moving sanitizer from their original bottles to ones labeled “New York State.”

Incarceration After Coronavirus

Given circumstances in other countries that faced the brunt of the pandemic before the United States did, health officials are predicting that the virus could continue infecting people in waves. Prison populations will likely be particularly vulnerable: Even before the advent of coronavirus, some prisons have long been ripe for the rapid spread of illness, conditions that will continue even after the coronavirus is abated and another virus possibly takes its place.

“Our prisons, our detention centers, are not transparent. The public really doesn’t know what’s going on,” Eisen said, describing the system as a black box. “This has highlighted the really terrible conditions that we have allowed those who we incarcerate to live in.”

Many prisons are already “significantly overcrowded,” she explained, and are operating above maximum capacity. In Kentucky, half of the state’s 80 prisons are at 125 percent capacity. Last year, Alabama had the most overcrowded prisons in the country.

“You have people double-bunked, triple-bunked in some of these facilities,” Eisen said. “These are places where there’s not enough soap, and if you don’t have money, you can’t buy extra soap,” she added. “These are basic conditions that we should be giving every single person who’s incarcerated.”

One possible silver lining, Eisen said, is that law enforcement agencies and public health officials can now work together to end unnecessary prosecutions.

“We need to think of our jails and our prisons as part of our community,” Eisen said. “This will hopefully be a wake-up moment for a lot of policymakers and the public across the country.”