How mass incarceration will lead to mass infection — and how to avoid it

The coronavirus pandemic has people keeping their distance from each other. But what if you had no choice but to be in a crowded room, sharing a sink and a toilet, unable to so much as sanitize your hands or step away from a person when they sneezed? America’s culture of mass incarceration is unnecessarily forcing hundreds of thousands of people to crowd together, often with substandard sanitation and medical care. They’re prisoners held for low-level offenses like shoplifting, drug possession and even driving with a suspended license. For their sake, and ours, we need to let them out. Refusing to do so is not only unfair and dangerous, but possibly unconstitutional.

Many of our prisons  and jails are overcrowded. Even the ones not considered overcrowded house strangers in close proximity, with a revolving door of inmates. Jails, which mostly house people who have not yet been convicted, move people in and out on a constant basis. As medical experts will tell you, this is a recipe for coronavirus disaster  You cannot practice social distancing in prison.

It’s also a constitutional issue. Keeping prisoners in unhealthy conditions can constitute “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments. The standard is fairly lenient. Prisoners must prove that prison officials acted with “deliberate indifference” to prisoners’ well-being. It’s a high bar, but the Supreme Court has stated that exposure of prisoners to a “serious communicable disease,” even if the prisoners currently show no symptoms, can meet this standard. Another federal court  found that standard met by a prison’s lackluster response to a tuberculosis outbreak.

This injustice is even worse with respect to the roughly half a million people jailed in the U.S. who haven’t even been convicted. Under the Due Process Clause, they’re entitled to at least as much protection as those actually convicted. Such people are being held awaiting trial — some because a judge has determined they are likely to flee or be dangerous, but most simply because they can’t afford bail. To add insult to injury, many federal courts have suspended jury trials under the Speedy Trial Act’s emergency provisions, ensuring that those people remain in jail even longer awaiting a trial. Surely we can release many of these people pending trial without serious risk.

This isn’t just a question of justice; it’s sound health policy. Prisoners constantly cycling in and out of crowded prisons can spread coronavirus to the population at large. The virus is  already spreading at New York’s Rikers Island facility. Our mass incarceration regime can mass-produce thousands of Typhoid Marys.  

No reasonable person would urge the release of dangerous prisoners who have committed serious crimes. But a large percentage are held for nonviolent drug, property or “public order” offenses like prostitution, public drunkenness and even driving on a suspended license. They would pose less of a public safety threat healthy and released than as potential pandemic vectors.      

Some jurisdictions have gotten this message. Los Angeles, Cleveland and  Boston have already decided to release prisoners deemed low-risk. Others are not only releasing some inmates but slowing down the influx of more. Baltimore prosecutors are no longer prosecuting most drug, prostitution and other public order offenses. 

But not all jurisdictions have gotten on board. The federal system has announced no policy regarding releasing low-risk prisoners or slowing the influx of new low-level, non-violent offenders. Thankfully Immigrations and Customs Enforcement has temporarily suspended most immigration arrests, reserving arrests for those who pose a public safety threat or whose confinement is mandatory. 

New Orleans prosecutors have gone the opposite direction, arguing to judges that inmates have to be kept in jail precisely because they may pose a public health risk even if they don’t have the virus. They’ve argued that defendants have the burden of proving  they have a place to stay and will practice safe social distancing, punishing the poor with increased risk of infection. They have also argued  that release policies are unnecessary because there are no confirmed COVID-19 cases in the jail — precisely the type of short-sighted decision making we can’t afford in this pandemic.

If we wait for outbreaks in our jails and prisons, it will be too late. Prosecutors should suspend prosecutions for non-violent, low-level offenses. Jails should release non-violent pretrial detainees who languish in jail simply because they cannot afford bail. Prisons should release low-level, non-public-safety offenders who are near their release term anyway, or if they are older or medically vulnerable. For others charged with or convicted of similar offenses, they should consider parole, home confinement with ankle bracelet monitoring or other alternatives to traditional incarceration until we are certain the pandemic is behind us. Finally, we need to implement nationwide testing for COVID-19 in jails and prisons.

The time to act is now. It’s a matter of not only justice, but societal self-defense.

Steven Mulroy is a former federal prosecutor and county commissioner who teaches criminal law at the University of Memphis. Brice Timmons is a civil rights lawyer at the law firm of Black McLaren Jones Ryland & Griffee Memphis who litigates prison conditions cases.