The singular threat posed by the COVID-19 pandemic has managed almost overnight to do what years of advocacy have not: transform the pace of criminal justice reform from a trickle to a torrent in the United States.
Over the next few months, many of the reforms that advocates have pushed for years will be put to the test. Reformers and tough-on-crime proponents alike appear poised to claim vindication based on the results. But scoring those results will be far more complicated than just looking at crime rates, and any rush to judgment would be a mistake.
Jurisdictions have leapt into action in large part because the justice system is especially ill-suited toward slowing or otherwise managing the spread of the coronavirus. Jails and prisons tend to be crowded, unhygienic environments that can breed disease in the best of times. Courtrooms and probation offices similarly pack dozens of individuals in close quarters every day.
What’s more, the daily churn of the system ensures that thousands of individuals enter and exit it every day, potentially carrying infection to and from the wider public.
Seemingly, every component of the justice system has stepped up this challenge. Police departments are turning more frequently to citations and summonses in order to avoid arrests. Prosecutors are reducing charge rates for low-level crimes and supporting additional pretrial and compassionate releases.
Judges are starting to consider coronavirus in their bail decisions. Governors have granted clemency and commuted the sentences of older, more vulnerable prisoners.
This burst of activity makes it feel as though criminal justice reform balances on a knife’s edge.
Already, advocates of the tough-on-crime approach are arguing that these reforms will endanger the public. Indeed, if there is even the slightest uptick in crime rates they will judge these reforms as terrible mistakes. But given the impromptu and ad hoc nature of these measures enacted in response to a once-in-a-lifetime crisis, they should be judged accordingly.
These are not normal times and likely will not be for quite some time. The pandemic is placing enormous stress on our public health systems, cratering the economy, and eliminating many of the social and other supports––including mental health and substance abuse treatment––that we rely upon.
On top of this, few institutions planned for a crisis such as this, especially in the criminal justice community. This means that local officials will need to cobble together many of these measures on short notice, based on the information at hand.
These are hardly ideal conditions to test any policy proposition.
So what might these pandemic conditions do to the results? In the short term, shelter-in-place orders and the contagion itself will likely suppress crime rates. Over the long run, high unemployment and degraded support networks could drive crimes rates up.
Any fair reading of the results of these measures must consider both the short- and long-term factors. Further, we need to assess these ad hoc reforms with the appropriate nuance, develop models that can separate the real data from the noise, and take into account all the factors that influence criminal justice outcomes.
This is not to say that we should ignore these ad hoc programs springing up in towns and cities across the country. Far from it. It simply means that in the absence of real data, leaders must reserve judgment on these measures and remember that they are intended to avert immediate catastrophe. Later, caution should temper any knee-jerk return to antiquated crime polices from decades past.
For the foreseeable future, the grim march of the pandemic means that we need to hold onto whatever silver linings that we can.
Right now, the future of the criminal justice system seems up for grabs, with a new willingness to enact reforms that didn’t seem possible just weeks ago. At the end of this crisis, we will have a rich trove of data to inform policy making. There will be time enough to figure out how we can use these examples to form a justice system that both more just and more equitable.
In the meantime, the goal should be to save lives and keep us safe.
Lars Trautman is a Senior Fellow of Criminal Justice and Civil Liberties Policy at the R Street Institute and a former assistant district attorney. Arthur Rizer is the Director of Criminal Justice and Civil Liberties Policy at the R Street Institute. Arthur is also an Adjunct Professor at Antonin Scalia Law School, George Mason University, and a former police officer and federal prosecutor.