Can COVID-19 Force Us to Take Criminal Justice Reform Seriously?

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Photo by J. Chan via Flickr

On March 20 I wrote a column for The Crime Report about the so-called “precautionary quarantines” that had been ordered at some units in the Washington State Reformatory, where I am serving a 20-year sentence−quarantines that amounted to prison lockdowns—after a staff member tested positive for COVID-19.

With half of the prison units in quarantine (mine wasn’t one of them), I predicted that the entire facility would soon be facing the same fate.

That seems even more likely now.

The Washington Department of Corrections (WDOC)  is reportedly considering bringing a new group of inmates inside. ­­­­In recent days, incarcerated workers were instructed to clean and prepare a portion of the prison that had been unused for years—a living unit called 3A. When the job was done, workers in charge of the cleanup revealed to other prisoners that the space was being prepped for people being returned to confinement as a sanction for violating conditions of probation.

If true, this would be a significant change. Violators in this state are generally housed either in local jails or the solitary confinement unit at the Monroe Correctional Complex—never in 3A. But apparently local jails are no longer accepting this class of inmates, a decision confirmed by authorities to a local TV station.

Even if the report isn’t true, it underlines the deeper challenges of prison reform brought to the forefront by the coronavirus epidemic.

Instead of shifting inmates from jails to prison facilities, we should be looking for ways to stop re-arresting low-threat individuals for technical violations of their release conditions that are not connected with new criminal behavior.

The epidemic has already added momentum to the movement to reduce mass incarceration.

This week, a group of prisoners in Washington facilities sued Gov. Jay Inslee and state corrections chief Steven Sinclair, seeking the release of inmates aged 50 or over, as well as those with serious health problems, and anyone with scheduled early release dates within the next 18 months, as a precautionary step against viral spread. That could add up to more than 1,900 prisoners.

The suit argued that the cramped and crowded environment of correctional facilities make them ill-prepared to protect inmates and staff from a highly contagious disease. Their idea will likely receive pushback. When some people hear that prisoners may be released even one day early, they immediately envision worst-case scenarios and threats to public safety.

Editor’s Note: Attorney-General William Barr said earlier this week that releasing prisoners because of the COVID-19 epidemic could lead to an increase in crime, echoing warnings by some police groups.

 But the evidence suggests there’s little basis for such fears.

Marie Gottschalk, a professor of political science at the University of Pennsylvania, is one of the many academics who argue the recidivism for older inmates who have served length sentences is “comparatively low.” In her book, “Caught: The Prison State and the Lockdown of American Politics,” she acknowledges that the rate will never be zero, but observed that “[r]eleased long-time prisoners do not pose a major public threat.”

It’s a confirmation of what is generally accepted: people over 50 are not likely to reoffend.

The pandemic has raised the stakes higher. Releasing people six months ahead of their scheduled release date is a way of acknowledging that any rehabilitative programming or counseling they might have received to help them reintegrate into society is effectively shut down anyway because of the new restrictions on social contact inside prisons.

And one could make a strong argument that if society showed concern for the health of these people by releasing them early from potentially dangerous environments, they would feel appreciation for and accountability toward the community−both of which would decrease recidivism.

Instead, the reported plan to bring more inmates inside is an alarm bell. The prospect of adding more inmates to my facility should make everyone —including staff and the outside community—nervous.

In theory, the new unit where the transferred jail inmates would be housed is isolated. It sits in the bottom corner of the facility’s brick-housing structure, where they would not come in contact with those in the general population.

But staff overseeing them will. And those staff members will invariably come in contact with other prison employees who do come in contact with the general population. It amounts to a “Butterfly Effect.” The fact that portions of the 2004 movie by that name were actually filmed inside this prison makes it an apt analogy.

While bringing any additional inmates into prison in the midst of a pandemic is a bad idea, it would be an even worse idea with these inmates. Violators come, almost always, directly from the community.

Many lack housing, employment, and other life stabilizing features−and often struggle with substance abuse issues. The likelihood that they have been practicing “social distancing” is slim. Considering that many of them come from Seattle, the epicenter of the disease in Washington State, should make the threat to the staff and the 800 inmates in this facility obvious.

As of Tuesday, 2,469 coronavirus cases had been confirmed in Washington, with 123 deaths. So far, three WDOC employees and one contractor have tested positive for coronavirus.

Wouldn’t it be smarter to turn the threat posed by COVID-19 into a moment for accelerating the long-needed reforms to our prison system—starting with reducing prison populations?

Washington state legislators are already considering some major reforms to the justice system that will responsibly lower the number of people in prison, protecting both inmates and the community.

Ending the use of confinement as a sanction for low-level probation violations would be an important change. Another would be restoring the original level of earned release time. Until the 1980s, inmates could earn up to one-third off their sentences. But in the tough-on-crime era, state lawmakers legislature slashed it to 15 percent, and then 10 percent, for many prisoners. These and other changes effectively resulted in many inmates serving 20 or more years while receiving a year or less of earned time.

Tomas Keen

Tomas Keen

The time is long overdue for a reassessment; COVID-19 makes such a reassessment even more urgent. While changes in sentencing and penalties for technical violators are specific to Washington State, the same or similar solutions could be taken up by any jurisdiction hoping to stave off disease outbreaks in the prison system.

Opponents of mass incarceration have argued for years that it’s time to stop warehousing our fellow humans at such inordinate rates. Perhaps the pandemic will help strengthen their arguments.

Editor’s Note: The prisoners’ petition was filed by attorneys from Columbia Legal Services, a Seattle non-profit. In addition to requesting immediate release for older prisoners and those whose health is already compromised, the suit requested added measures inside the prison, such as providing alcohol-based hand sanitizer—to protect the health of inmates who will remain.

Tomas Keen is incarcerated at the Washington State Reformatory, where he chairs the legislative committee of the prison’s Concerned Lifers Organization. 

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