In an essay on Charles Dickens, George Orwell quotes from A Tale of Two Cities:
It was too much the way… to talk of this terrible Revolution as if it were the only harvest ever known under the skies that had not been sown — as if nothing had ever been done, or omitted to be done, that had led to it — as if observers of the wretched millions in France, and of the misused and perverted resources that should have made them prosperous, had not seen it inevitably coming, years before, and had not in plain terms recorded what they saw.
That passage should ring in our ears as we reckon the toll the coronavirus takes among our prison and jail populations, their guards, their families, and their neighbors.
There are too many people in the jails and prisons. They are housed too close together. They lack distance, soap and basic sanitary protections. Many of them are old; many more have compromised immune systems. They receive only rudimentary medical care, and receive that sporadically.
The correctional environment intensifies vulnerability. It will accelerate the spread of the disease within the institutions.
Jail-as-cruise ship. Prison-as-Petri-dish. These metaphors were mobilized within hours of the pandemic’s appearance. No one questioned the relevance; it was obvious.
Do you remember the news footage of the tsunami coming ashore in Indonesia? Of the ant-like, soon-to-be-dead, humans panicking in the foreground?The inexorable wave following close behind?
It will be like that. Except that humans in custody have nowhere to run. And they know it.
Are we shocked? No, not really. Did we do anything about it? No. Will this be the last virus? Is this the final wave of this one? It doesn’t seem likely.
Apologists and Avengers
A genuine disease, COVID-19, now threatens to teach us crucial lessons about the poverty of our criminal justice discourse — about our fixation on treating criminal offenders as if they are pathogens.
Back in the late 20th century, there was a battle. On one side stood people who thought crime and violence should be seen as issues of public health, to be attacked through societal repairs. Fix education, employment and economic inequality.
In the opposing trenches stood those who believed that crime and violence were exclusively matters for criminal justice treatment. They argued that punishment, incapacitation and deterrence are the only medicines. They saw early childhood intervention and rehabilitation as pipe dreams.
The public health partisans described their criminal justice adversaries as wrathful avengers; the criminal justice partisans dismissed the public health-oriented as apologists for misbehavior. They fought a zero-sum war where one side had to win —and one to lose — all.
The outcome was such a rout that today it is hard to remember that the struggle even took place. Talking about it feels like talking about the conflict between the Greeks and the Trojans. Willie Horton taught us that a Future President like Mike Dukakis could be turned into a Permanent Figure of Fun by choosing the losing side.
Nixon and his many heirs found a way to harness racism to their team and to magnify its effect. Political and policy determinations about crime now are driven by control. Even the surviving dissident voices make degree of control the focus: They seek due process control of the officials.
Quarantine as the Remedy
After the control side’s triumph, it turns out that its one big idea is borrowed from public health: quarantine, invented by the Venetians in the 15th century as a protection against the plague.
We fill the TV schedules with cop shows. American law schools spend months on the legal labyrinth that leads to conviction, and the law reviews groan under the weight of commentary on those processes.
But once the offenders are arrested and convicted, we are incurious about what happens to them. They’re just gone — disappeared.
Sequestering criminals becomes the whole point. Even punishment — in the sense of individual “just deserts” — although it is wheeled out now and then as a nod to crime victims’ desires, is eclipsed by the idea that isolating pathogen offenders is the sovereign route to community health.
But COVID-19 teaches us that prisoners aren’t really gone at all.
The correctional environment will help COVID-19 decimate the prisoners, but it will fuel its spread in the community too.
Detainees often cycle through jails pretty quickly. Even in prisons, guards, contractors, and administrators travel in and out. They have families; those families live in neighborhoods.
The prisoners have families in those communities too, and although the prisoners are physically absent, their absence — and their existential jeopardy during that absence —is a present reality for those families.
Meanwhile, a circular logic takes effect. Quarantine makes diagnosis pointless since, after all, quarantine is the only treatment for all maladies. So, diagnostic capability atrophies. The absence of persuasive diagnoses eliminates any pressure for treatment.
It comes down to control as a goal — control as an end in itself, not as means to an end. The only rule is the longer the sentences, for the higher number of prisoners, the better.
The relationship of the length of most sentences to any goal other than quarantine is about as rational as the original Venetian quarantine’s 40 days, with its roots found in biblical events, not in science.
The prisoners pile up. Watch the official reactions to the COVID epidemic. There are exceptional jurisdictions, but, generally, the cops keep bringing the people to the jails’ front doors; the prosecutors fight to keep them — or as many of them as possible —from leaving.
Courts attempt to keep their dignity while washing their hands. Governors, like New York’s Andrew Cuomo, treat the jail and prison COVID-19 challenge as problem for some other day, a question of Them/There.
These officials cherish the measure of control they possess. They don’t want to cede it. Incarceration becomes a triage criterion: “If you can’t do the time — and survive the virus while you do it — don’t do the crime.”
Incarceration, with its stark built-in racial biases, becomes a triage criterion: “Later for you.”
Safety, Not Control
The COVID-19 pandemic presents us with an opportunity to step away from this dangerous futility long enough to remember that the basic goal here is not control; the goal is safety—everyone’s safety, crime victims’, cops’, communities’, and prisoners’ too.
Do that and you can’t sustain the pretext that public health and criminal justice are two separate and independent silos. You have to recognize that for all practical purposes they constitute one complex adaptive system.
When, as in Camden, New Jersey, 67 percent of the emergency room patients cycle through the criminal justice system every year, it is simply stupid to pretend that two linear, sequential systems, operating in isolation are taking their mechanical courses.
In the complex U.S. health/justice system, we are not confronting a clockwork where individual causes (a broken spring) have inevitable effects (a frozen watch). We are in a world of overlapping conditions and influences in which the frontline workers are trying to make sense of their swirling environments and get on with their work as best they can.
These conditions and influences don’t “cause” things; they change the probabilities, and everyone’s work is affecting everyone else’s work, all the time.
The people we need to repair the COVID-19 disaster will come from both criminal justice and public health, and they will have to recognize that “joined-up solutions” are the only way forward.
The challenge of crime requires the same approach.
As with an epidemic, we can’t finally defeat the threat of crime by quarantine and control. Trying to do that gives cops and corrections workers (among others) too much of the wrong kind of work, and ultimately prevents them from doing even that work well.
But— as with the epidemic — if we collaborate across the whole range of public health and justice work, we can accomplish something real when we “bend the curve.” Take fewer people in; let more people out.
We can begin to protect individuals, and to free the resources needed to promptly diagnose and treat more individuals as they present themselves. We can learn to find the space for the “holistic” approaches that make a difference.
If we don’t, the wave of harms will overwhelm us, and after the coronavirus epidemic, we won’t be able to deny that we had seen it inevitably coming, years before, and had in plain terms recorded what we saw.
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.