by Sharon Dolovich

Most of America’s 2.3 million prisoners cannot practice social distancing. They are packed into overcrowded facilities, living, sleeping and bathing within feet—sometimes inches—of each other. What’s more, they often lack sufficient basics, including soap, warm water and clean towels, let alone hand sanitizer. Unless radical action is taken, many thousands of people inside—staff and prisoners alike—will needlessly die.

The radical action required—the only one that can prevent massive unnecessary loss of life—is reducing the population of jails and prisons. Efforts in this direction have begun in many jurisdictions. But the steps taken so far are not nearly enough, not by a long shot. All public officials with release authority— including sheriffs, prosecutors, judges, corrections officials, parole boards, and governors— need to step up and immediately find ways to release as many people as they can before the virus strikes. In doing so, they have the opportunity to save thousands of lives and to begin the long overdue process of ending the costly, inhumane and counterproductive project of mass incarceration.

In the 1970s, the size of the American prisoner population was roughly on par with other Western democracies. Yet starting in the 1980s, the U.S. became the world’s biggest jailer, jamming incarcerated people into dormitories and doubling them up in small cells in open disregard for their health and wellbeing.

There was a time, beginning in the mid-1970s, when federal courts confronting dirty, decrepit and crowded prisons and jails readily found conditions unconstitutional and ordered states and municipalities to reduce their prisoner populations. But when President Clinton joined with Congress to enact the Prison Litigation Reform Act, the power of the federal courts to issue such orders was drastically curtailed.

In the mid-1980s, 43% of the national jail population and 27% of the prison population were housed in facilities with court-ordered population caps. By 2006, these numbers had dropped to 11% and 2% respectively, undermining a key check on overcrowding.

Today, harsh conditions and often grossly inadequate health care leave many prisoners medically compromised. In California prisons alone, an estimated 17,000 people —14% of the state’s prison population—suffer from chronic diseases, including cancer, end-stage liver disease, acute asthma, diabetes, hypertension, and kidney conditions requiring dialysis.

Long before COVID-19 struck, some jurisdictions had made moves toward decarceration. The federal prison population is down 20% from its historic 2014 high of almost 220,000. From 2006 to 2016, New York’s prison system shed 10% of its population. In 2016, the New Jersey Department of Corrections held 37% fewer people than it did at its height in 1999. Some local jurisdictions have gone still further.

Thanks to bail reform and other strategies, the population of Chicago’s Cook County Jail has dropped by more than half since 2005. In Rikers Island, the population is down more than two-thirds from a decade ago. Still, these facilities are outliers, and, as the fast-growing number of confirmed cases in both institutions makes crystal clear, even they remain too crowded and too full of people in the highest risk groups to avoid the devastating effects of the virus.

But crisis is opportunity. As the COVID-19 threat has grown, something is happening that was unthinkable just six weeks ago: government officials are letting people out. UCLA Law School has created a public database to track coronavirus-driven policy changes all over the country, and it shows conscientious officials rediscovering decarceral powers they had forgotten they had.

Officials in Fort Worth, Texas have suspended arrests for minor offenses. The jail in Oakland, California sent home 314 low-level offenders. The New Jersey Supreme Court ordered the release of anyone in jail on a probation violation or for a minor offense.

In West Virginia, prison officials are releasing parole violators and extending weekend furloughs and are actively looking for other levels to pull. Corrections commissioners in Iowa, North Dakota, Rhode Island and other states are seeking to expedite parole releases and to shift people to community placement.

Some officials are driven by fear that prisoners with COVID-19-induced respiratory distress will be sent to local hospitals and monopolize scarce ventilators. But whatever the motive, no one is racing to release anyone dangerous. Nor need they do so to quell this crisis.

For decades, we have incarcerated hundreds of thousands of people who pose little public safety risk. Many people in custody right now committed nonviolent crimes. Many others, although having once committed more serious crimes, are fully ready to be productive, law-abiding citizens. Many more are elderly and sick and need medical or hospice care, not bars and handcuffs.

COVID-19 is already moving through prisons and jails across the country, and confirmed cases are growing exponentially. As of this writing, in Rikers, 441 staff and 287 residents have now tested positive. At Oakdale, a low-security federal prison in southwest Louisiana, at least six prisoners have already died. These numbers, along with all reported positive cases and COVID-19-induced deaths inside, are almost certainly undercounts. In every facility, once the virus takes hold, it will spread quickly. Untold numbers of people will die, effectively sentencing them to the death penalty, whatever their crime.

Every public official with the power to decarcerate should exercise that power now, to the fullest extent. If they do, they will save countless lives, including those of staff. And in the process, they may show us by example how to begin, finally, to dismantle mass incarceration for good. 

Sharon Dolovich is a professor of law and director of the UCLA Prison Law and Policy Program. She is currently spearheading the UCLA Covid-19 Behind Bars Data Project, which is keeping track of developments related to COVID-19 in prisons and jails nationwide. An earlier version of this story appeared in The Appeal.

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