The jail on New York’s Rikers Island has a coronavirus infection rate that’s seven times higher than in the surrounding city. Three inmates in a federal prison in Louisiana have died from Covid-19, with many prisoners and staff members testing positive for it. More than 100 individuals incarcerated in the crowded Cook County jail have Covid-19. The first case appeared in a jail in Harris County, Texas. And we’re just getting started.
One solution is decarceration — releasing inmates deemed to be at low risk for reoffending as a way to reduce the density inside prisons.
Decarceration isn’t just humane for individuals who are incarcerated, whose access to sanitation and competent care is limited. It is essential to flattening the curve for everyone.
That’s why public health experts, reform advocates, and even MSNBC host Rachel Maddow have pled with everyone from judges, governors, law enforcement, and President Trump to spring people. Their entreaties have met with some success — eight states reacted quickly to the requests and immediately liberated large numbers of people deemed “low risk.” Others, like the state of Connecticut, have refused. Other jurisdictions remain undecided about decarceration or, like the Federal Bureau of Prisons, inconsistent.
Making the case for release hasn’t worked uniformly because advocates have presented the issue to the wrong people. We need to bring this urgent public health problem to a doctor, ideally a public health practitioner. Fortunately, one such individuals is directly empowered to release people from custody, in every jurisdiction.
Federal statute 42 U.S.C 264, which is part of the Public Welfare Code, authorizes the U.S. surgeon general to release, on a conditional basis, anyone in custody as long as the release has the “purpose of preventing the introduction, transmission or spread of such communicable diseases.”
No one’s ever invoked the statute for this purpose, but this is the first time in more than a century we’re experiencing a pandemic and an incarceration crisis at the same time. We don’t know how many people were in prison when the Spanish flu hit in 1918, but in 1925 it was about 91,000. Today, about 2.2 million people are incarcerated.
This system, which has grown by more than 24-fold in 95 years, isn’t a monolith. It’s a network of 4,000 separate fiefdoms in the United States, where governors or sheriffs or wardens have control over policy. The localization of criminal justice means that responses to Covid-19 won’t be equivalent. And that means they won’t be fair, not only to individual inmates but to local communities.
Decarceration is not some strategic manipulation to circumvent the courts or clemency systems and spring people who might not otherwise have a chance; it’s an essential public health strategy.
A team of epidemiologists published a study in January that showed a significant correlation between incarceration rates and mortality rates at the county level. When the pandemic struck, the study authors re-analyzed their data to focus on infectious disease and found that the infectious disease mortality rate (excluding HIV) increased 4% when counties increased their incarceration rates. The threat posed in and by correctional facilities is real.
It’s obvious that maintaining legal sentences and keeping prisons and jails at their current capacities will likely push more people into the path of the coronavirus. Yet the people in charge of these legal systems resist a simple solution to that problem.
This slow and uninformed response by government leaders should have been expected. Common sense calls for decarceration don’t seem to work on people who aren’t medical professionals, namely police, prosecutors, and judges. Incarceration is a public health issue, yet we’ve allowed people with no medical or health expertise to steer criminal justice for decades. Criminal law and best practices in public health are often incompatible with each other, as has been said about the war on drugs and the opioid epidemic.
Now that we’re in a new health crisis we’re doing it again: going to the lawmen to solve a medical problem.
The arguments against uncaging people — recidivism and a loss of punitive authority — are weak. It’s unlikely that released inmates will pose the same danger to public wellness as the coronavirus. Decarcerated individuals would have to kill more than 2,000 people a month to be as lethal as this virus.
And take note: The releases thus far haven’t resulted in a crime wave. Actually, crime has gone down during the pandemic, mostly because people are home and not out.
U.S. Surgeon General Jerome Adams has the authority to release people from prisons and jails. That’s undisputed. Whether he will exercise that authority when asked to do so is the question.
Adams has a unique perspective on incarceration: He’s one of 113 million adults in this country who have an immediate family member who is or was incarcerated. His brother, Phillip, was incarcerated as recently as early 2017 in Maryland on a burglary charge and sentenced to 10 years in prison for stealing about $250. Adams has said that his brother’s saga is “the story of America” and an attempt to “punish a chronic disease” — addiction.
If Adams says it’s sound medical practice not to release people, then we should follow that advice. At least it will be a medical practitioner making health-related decisions.
Chandra Bozelko is a nationally syndicated columnist and runs Prison Diaries, an award-winning blog. She was incarcerated for more than six years in Connecticut.