Decarceration in the Face of a Pandemic

America's jails and prisons are now among the deadliest environments on the planet. Most of them are desperately overcrowded, understaffed, unhygienic, and utterly unable to provide even minimally adequate medical care to those who contract COVID-19, which is now spreading like wildfire through those facilities, endangering not only the lives of prisoners, but also of guards, staff, and the communities to which they all return at the end of their shifts.

Thus, one of the most urgent—and contentious—debates in criminal justice today is over which prisoners to release in the face of a pandemic that is literally unprecedented during America's era of mass incarceration, which dates back to the early 1990s. Defense attorneys across the nation have filed a blizzard of early-release motions on behalf of their incarcerated clients, and the ACLU and other civil rights groups have sued a number of prisons and jails seeking the immediate release of particularly vulnerable inmates. Tragically, all of this is unfolding against the backdrop of a system that falls disgracefully short of meeting prisoners' medical needs during the best of times. In the midst of a genuine emergency, it is no secret what will happen to most people who contract COVID-19 behind bars: They will be left to live or die with only token medical attention.

As a result, all but the most obtuse proponents of mass incarceration now recognize that it has become morally indefensible to continue holding at least some fraction of the roughy 2.3 million people currently behind bars in an environment where we can neither adequately protect them from nor treat them for COVID-19.

But the system is having an extraordinarily difficult time deciding whom to release, and I think there are three key reasons for that: (1) we have become so cavalier in our use of the criminal sanction that the mere fact of a person's incarceration tells us nothing about his moral culpability or what risk his immediate release might pose to society; (2) we've become so inured to how horrible the conditions in jails and prisons are that exposing inmates to a new and exceedingly virulent pathogen may strike some as simply a marginal change in the already dismal circumstances of their confinement; and (3) thinking seriously about whom to set free and whom to keep behind bars in the midst of a pandemic raises questions that the carceral-industrial complex can scarcely afford to have people asking after the crisis subsides. I will address those points in turn.

1. The mere fact of a conviction tells us nothing about a person's culpability. There was once a time when the fact that someone had been convicted of a felony meant that person had committed a genuinely harmful act meriting significant punishment at the hands of the state. But those days are long gone. Today, the fact of a felony conviction—let alone a misdemeanor—tell us nothing whatsoever about a person's moral culpability.

For example, despite the growing national consensus on marijuana legalization, it is still a felony under federal law to cultivate marijuana, with up to five years in prison for growing a single plant. It's also a felony to lie to a federal agent, even if you're not under oath and have not been advised of your right to remain silent. And until it was struck down in the courts, an Illinois law made it a class 1 felony, punishable by up to 15 years in prison, to record police in public. The list of non-harmful, morally blameless crimes in the U.S. is exhaustive, and there are any number of books, blogs, and social media sites dedicated to cataloging them, including the simultaneously hilarious and horrifying Crime a Day Twitter feed, where one discovers, for example, that it is a federal crime both to shoot fish from an airplane and to skydive drunk (activities one might think better addressed through natural selection than criminal justice).

There are at least two more reasons why the mere fact of a conviction tells us nothing about a person's moral culpability. First, the government is notoriously profligate in classifying as "violent" crimes that really aren't. Thus, according to a piece by the Marshall Project titled When Violent Offenders Commit Nonviolent Crime, trafficking in stolen identity and selling drugs within 1,000 feet of a school are both considered violent crimes in North Carolina; in Kentucky a second conviction for possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine is categorized as a violent crime; and in New York it is a violent felony to possess a loaded gun illegally, something countless otherwise law-abiding Americans—in New York and elsewhere—do every day for perfectly valid reasons and without harming anyone.

Second, due to the system's increasing dependence on coerced plea bargains—more than 95 percent of criminal convictions are now obtained through guilty pleas instead of trials—we have no idea in any given case whether a defendant pleaded guilty because she really was guilty, or instead because prosecutors believed she was and simply applied the requisite amount of pressure to obtain a confession of guilt, whether true or false. What percentage of people currently serving time behind bars would not be there but-for the system's inexplicable tolerance of nakedly coercive plea-bargaining tactics by prosecutors? No one knows for sure, but if one includes not just factually innocent defendants but also defendants whom the government could not have convicted via a constitutionally compliant jury trial, estimates run as high as 33 percent.

2. We have a high tolerance for horrific prison conditions. Besides being utterly cavalier in our use of the criminal sanction, we have become so inured to the horrific conditions inside our jails and prisons that it seems difficult for some policymakers to quantify the additional incremental effect of adding an exceptionally virulent, deadly disease to the already lethal mix of brutality, squalor, and indifference that represents our system's brand. Reliable statistics are difficult to come by because we do such a poor job of keeping track, but a recent Justice Department report documents in shocking and sometimes nauseating detail the prevalence of violence in Alabama's prison system. Of course, Alabama is hardly an outlier, and it is widely understood that in American prisons, physical and sexual violence are routine, as is the spread of infectious diseases including particularly HIV/AIDS and hepatitis. Moreover, we can say with confidence that the rate of deaths behind bars, including from suicide and violent assault, has surged in recent years, and it is well known that the federal Bureau of Prisons was unequal to the task of keeping Jeffrey Epstein alive long enough to stand trial on charges of being perhaps the most prolific serial child molester in American history.

Simply put, as a society we are utterly indifferent to the safety and well-being of those we incarcerate, and we have an extaordinarily high tolerance for inhumane and even deadly conditions of confinement. Against that backdrop, it appears difficult for some policymakers and political leaders, including New York Governor Andrew Cuomo, to coherently assess the additional incremental risk posed by the addition of coronavirus to the already dangerous and often squalid atmosphere of the average jail or prison.

But evidence is rapidly mounting that in fact the spread of COVID-19 through the nation's "corrections" facilities represents not merely an incremental risk to prisoners and staff, but a categorical one. According to the Marshall Project, there were nearly 10,000 documented cases of COVID-19 among the nation's prisoners (which, as the authors explain, almost certainly represents a substantial undercount) as of April 24, and the number of of new cases among prisoners is doubling every week. Not only is it impossible to practice social distancing in prison, but many facilities lack even the most rudimentary access to hygiene such as antimicrobial soap and hand sanitizer.

Still, the overall response at both the federal and state levels to this undeniable fact has been, on balance, caviling and feckless, with one federal judge describing the Bureau of Prisons' release process as "kafkaesque." So why is the system so reluctant to release people even though virtually every public health official agrees that decarceration must be among our top priorities?

3. The carceral-industrial complex cannot afford to have people asking the right questions.

Nearly two million Americans' jobs involve putting people behind bars or keeping them there. A significant departure from our policy of mass incarceration—for whatever reason—represents a grave threat to the livelihoods of police, prosecutors, and prison guards because a society that arrests, convicts, and locks up fewer people needs fewer people to do those jobs. As result, the question who truly deserves to be locked up is a fraught one for those whose paychecks depend on doing just that. Notably, for all the horrific suffering it has inflicted and will continue to inflict, the coronavirus pandemic has produced at least one silver lining: For the first time in living memory, ordinary Americans and their political represenatives are having a serious discussion about who truly deserves to be in a cage.

Consider the tragic story of Andrea Circle Bear, a pregnant 30-year-old who was sentenced in January to two years in federal prison for "maintaining a drug-involved premises" on the Cheyenne River Sioux Indian Reservation. Striking the obligatory tough-on-crime stance, U.S. Attorney Ron Parsons said in a press release, “Don’t let yourself or your property get mixed up in the world of illegal drugs. It ends badly.” That certainly turned out to be true for Ms. Circle Bear, who died of COVID-19 on April 28, after giving birth while on a ventilator in federal custody. Her baby survived.

This pointless and gutting tragedy raises a profound question: Why exactly are we keeping pregnant women in prison for non-violent crimes even when there isn't a global pandemic? Or anyone else, for that matter?

In their provocative new book, Injustice for All: How Financial Incentives Corrupted and Can Fix the U.S. Criminal Justice System, Professors Chris Surprenant and Jason Brennan present a compelling argument that not only is the scope of our criminal law vastly overbroad (a point no serious person disputes), but also that our preferred method of official punishment, incarceration, is both ineffective at achieving its stated goals and also "far more barbaric and inhumane" than flogging—a practice most Americans would consider beyond the pale for a supposedly civilized nation.

I will not attempt to do justice to that suprisingly powerful argument here (though I hope to give the authors a chance to do so themselves in a future Cato book forum), but let's suppose for a moment that they are right: Incarceration really is as brutal and inhumane as flogging, if not more so. Might it not be that the current crisis has simply thrown into stark relief something that has been true all along, namely, that it is wildly immoral to put human beings in cages unless absolutely necessary to protect the rest of us from the irredeemably violent? After all, no one is seriously proposing releasing murders, rapists, armed robbers, or others convicted of truly violent crimes (unless they are old or very near the end of their sentences) in response to COVID-19. Maybe it's no accident that so many of us can see such a clear difference between letting convicted drug dealers out of prison early versus convicted murders.

In short, it's almost as if we've been inserted into a real-life philosophy hypothetical, where we are no longer just speculating about what sorts of conduct merits confining a person to a hazardous environment where they will experience not just the loss of their liberty and autonomy, but also face a substantially greater risk of infection, sexual assault, serious bodily injury, woefully inadequate medical care, and death. Poor Andrea Circle Bear's experience, and that of her now motherless infant, remind us that our carceral policies are not remotely hypothetical and that we should not lightly condemn fellow human beings to such a horrific experience, even though we've gotten used to doing so every single day.

To say the carceral-industrial complex cannot afford to have people asking seriously who belongs behind bars is not just a figure of speech—it is literally true. As Surprenant and Brennan document in their book, locking people up is a big business in America, with more than $80 billion per year being spent just on the "corrections" end of it, whereas "[t]he complete incarceration pie, from arrest to release" is more than double that and "represents a $182 billion-a-year industry." Just imagine what would happen to many of those jobs if Americans continued taking the same morally punctilious approach to incarceration after the coranvirus pandemic as so many are now—often for the first time.

But again, the carceral-industrial complex can ill afford to have people thinking along those lines, and it is lavishly equipped to discourage policymakers from acting along them. In response to draconian and often idiotic features of our criminal justice system, such as the fact that there were more arrests in 2018 for marijuana possession than for all serious violent crimes combined, police and prosecutors are fond of saying "We don't make the laws, we just enforce them." But nothing could be further from the truth. Indeed, lumping the pro-carceral interests of police, prosecutors, and prison officials together, it is fair to say that the law enforcement lobby is the second- or third-strongest in the country. In fact, the nation's "premier" law enforcement agency, the U.S. Department of Justice, even has its own in-house lobbying shop, the Office of Legislative Affairs. We may rest assured that the carceral-industrial complex—aka the law enforcement lobby—will deploy those resources in the service of ensuring that today's decarceral response to the coronavirus does not become tomorrow's more clement criminal justice policy in response to simple human decency.

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So where does all of this leave us? No one can say for sure, but hopefully with a lasting sense of horror and guilt over the realization that our hypercarceral policies are both practically and morally indefensible, and that the blood of countless Andrea Circle Bears—and the lifelong suffering of their parentless children—is very much on our hands.