Will Pandemic Be ‘Tipping Point’ For Justice Reform?

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Although scores of elderly federal inmates have been released on compassionate grounds during COVID-19, 80% of requests have been denied. Illustration by Jonathan Hutarte/Bloomberg Law

Covid-19 has ravaged the nation’s prisons. Scores of inmates are dead. More are sick. And the healthy ones are at risk daily, despite calls for federal and state officials across all three branches of government to do more to save lives.

Some 72 federal inmates and one member of the corrections staff have died from the disease, according to the most recent Federal Bureau of Prisons (BOP) data. Another 1,956 inmates and 176 BOP staff have tested positive.

With a still-rising clamor for action, the coronavirus pandemic has prompted authorities, including Attorney General William Barr, to support the release of some inmates who might have remained locked up in ordinary times, particularly older and medically vulnerable prisoners who pose relatively little risk to society.

That has led reform advocates, academics and lawyers to ask why officials can’t make more use of compassionate release and home confinement after the pandemic passes, especially if crime doesn’t rise as a result and cash-strapped states want the biggest bang for their public safety bucks?

“The sky’s not going to fall,” said Kevin Ring, whose organization, Families Against Mandatory Minimums (FAMM), has been advocating compassionate release for years.

“These are old and sick people. They are the least likely to re-offend.”

Nevertheless, Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a victims’ rights advocacy group opposed to early release, says it is likely there has been an increase in crime due to the virus-related releases.

He argues that the jump has been “masked in crime statistics by the even greater reduction caused by people sheltering at home.”

Still, some reformers, who’ve been fighting for years against warehousing older and sick inmates in particular, see a glimmer of hope that this generational tragedy could serve to promote a more evidence-based approach to crime and punishment.

Pre-Pandemic Reforms

The pandemic hit at a time when some criminal justice reforms had started to take shape.

The bipartisan First Step Act, signed into law by President Donald Trump at the end of 2018, was criticized for not going far enough to topple the tough-on-crime policies that led to the U.S. having the world’s largest prison population.

But the new law included the compassionate release provision that’s being used to get vulnerable inmates out of harm’s way.

Before the pandemic, “we were already seeing the culture shift a little bit and the number of releases rise,” said FAMM’s Ring. “I think we’re just seeing an acceleration because judges are seeing vulnerable people plus COVID.”

Between April and May, more than 250 federal prisoners have been freed by compassionate release—compared to fewer than 150 from the First Step Act’s passage in the preceding year through March 2020—according to a Marshall Project account.

The pandemic added another tool to the release toolbox, if only temporarily. Part of the CARES Act, passed in response to the emergency, gives Barr and the BOP expanded home confinement authority for the duration of the crisis.

While the attorney general has directed the BOP to use home confinement to protect vulnerable inmates, it hasn’t happened to the extent sought by advocates. The Department of Justice is also fighting some release requests as well as some virus-related safety measures imposed on facilities by judges.

The DOJ failed to respond to a request for comment on its pandemic relief efforts for this story.

Since late March, more than 3,000 federal inmates have been placed on home confinement, according to BOP data. State releases vary widely—with hundreds of state inmate deaths and thousands of infections reported nationwide.

Rethinking Punishment 

As they push for more aggressive action from the government, advocates are mulling over ways to capitalize on the extraordinary situation.

“The hope is that this moment does [demonstrate] an opportunity around releases and being responsive to the recommendations that have been suggested for many years,” said Nicole Porter, director of advocacy at The Sentencing Project.

Her group promotes reforms in sentencing, racial disparities and incarceration alternatives.

Echoing that notion, Jeremiah Mosteller, policy counsel at the bipartisan Due Process Institute, said “many of the reforms advocates have been calling for in recent years are being implemented temporarily in justice systems across our country.”

So the pandemic “could serve as a tipping point for the recent momentum to implement evidence-based policies and other reforms in our criminal justice system,” Mosteller said.

Underscoring the bipartisan nature of the reform effort, Marc Levin, chief of policy and innovation at the conservative group Right on Crime, said the pandemic presents “a chance to reexamine some things that were just kind of accepted and old ways of doing things that don’t make that much sense anymore.”

His organization supports conservative solutions for reducing crime, restoring victims, reforming offenders, and lowering taxpayer costs.

“We’ve always thought that the evidence has shown that you could have a smaller system but a more effective one,” Levin said.

“Obviously the pandemic has magnified the risks of large congregated settings with poor sanitary conditions, which is what prisons and jails are.”

new report from the Council on Criminal Justice notes, “even before the novel coronavirus surfaced, the calls for criminal justice reform in our country were urgent and widespread,” and that “Americans from across the ideological spectrum are pushing for a reevaluation of priorities, and for incarceration alternatives for people who pose no real threat to public safety.”

Among its recommendations is “establishing a ‘second look’ provision allowing people serving longer sentences—many of them elderly and infirm—to ask courts for sentence reductions.”

These unexpected releases have created an experiment, of sorts—one that will play out in the months and years ahead.

Though officials could have acted more quickly and boldly, FAMM’s Ring said the crisis “has forced them to do things that are providing us a model to say, ‘Ok, well, how did it work?’”

The Sentencing Project’s Porter likewise said the nation is “in the middle of a social experiment when it comes to releases,” which creates “an opportunity to assess recidivism and returns to prison.”

What that assessment shows remains to be seen. But there’s reason to think that crime won’t rise—at least not due to the people getting out on compassionate release.

“The truth is, we are all functioning in a very unreal world right now,” said Philadelphia District Attorney Larry Krasner, a reform-minded prosecutor elected in 2017, who has worked to facilitate releases during the pandemic.

His office has been tracking various crime metrics, and will be monitoring what happens to those who’ve come out during these times who probably wouldn’t have otherwise.

There “could be sort of a backlash, because we ever dared to let some people out for perfectly good reasons that were in the interests of justice,” Krasner said.

But, he added, it “may also be that, by recognizing that jails, just like cruise ships and senior centers, are potential launchpads for the virus, that there’s a little bit more of a light shined on those jails, there’s a little more thought by people in the general public who don’t think about it very much, what it’s like to be in a facility.”

**Given the care that’s being exercised in only letting out good candidates for release, Krasner said, “my guess is going to be they really didn’t need to be in jail, pre-pandemic, post-pandemic, or in the middle of the pandemic. They really didn’t.

“And the data in general is going to support that. Some hearts and minds will be won over by that.”

Noting that DOJ’s expanded home confinement power is temporary, FAMM’s Ring said there should be a law that says, “In a declared national emergency, the Department has this authority.”

Advocates are also going to focus on why prison reform makes economic sense, in their view. That’s all the more salient when budgets are tight.

Changing Economics

Sentencing expert Douglas Berman, an Ohio State University law professor, said “what’s really going to end up shaping this story for years to come are the basic economics.”

No state’s going to want to build a new prison now, he said.

Economic reality “forces the issue,” said Right on Crime’s Levin. “The pandemic has made this more urgent, and maybe it wouldn’t have been on some people’s radars or been a priority had the budgetary impact of this pandemic not occurred.

“I think we’ll have their attention.”

But economic factors could also make advocacy harder in some respects.

“Because the economy is so awful, and so many people are unemployed, this is going to make reentry for people coming out of prison even more difficult than it usually is,” said professor Rachel Barkow, a leading expert on criminal law and policy at the New York University Law School.

“That might skew the re-offending numbers in a way that is misleadingly high,” she said.

Meanwhile, Scheidegger, the crime victims’ advocate opposed to releases, suggested that the current crime rate data is misleading.

“As the country reopens,” he said, “the effect of releases will show in statistics as well. Perhaps this will be the event that wakes the public up.” He said inmates could be isolated instead.

Mosteller of The Due Process Institute said that “most of the individuals who are released through these policies will return to their lives as law-abiding, productive members of their community.”

He conceded that, “inevitably, someone released from our prisons and jails during this time will commit another crime, and it has already happened in some places.”

Mosteller noted that, “while one bad story will not end the pursuit of criminal justice reform in these places, the way communities and advocates respond to these anecdotal stories could hamper our leaders from adopting policies that will result in a long-term increase of public safety in our communities.”

Jordan Rubin

Jordan S. Rubin

In terms of what lessons people draw from the pandemic, in the end, DA Krasner said “it’ll all get a little clearer once the scrum is over and we can all stand up, covered in mud.”

Justice, he said, “tends to zig and zag. I don’t know whether we’ll be zigging or zagging after this pandemic. I would like to hope it will be towards progress.

“But we’ll see.”

Jordan S. Rubin, a Washington, D.C.-based staff writer at Bloomberg Law, is a 2020 Harry Frank Guggenheim Justice Reporting Fellow. This is a slightly condensed and edited version of a story published last week. The full version can be downloaded here. Jordan S. Rubin can be reached at jrubin@bloomberglaw.com

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