The COVID-19 pandemic provides a unique opportunity to tackle “the harsh realities” of America’s justice systems, says a forthcoming paper published in the Colorado Law Review Forum.
The paper, written by Benjamin Levin, Associate Professor of Law at the University of Colorado Law School, says the threat posed by infectious disease to crowded jail and prison facilities has exposed both the lack of “sentencing realism” and the limitations of thinking of U.S. justice as a “monolithic system.”
“The pandemic has made each phenomenon more easily identifiable,” writes Levin. “But we must not allow the crisis frame to obscure the ways in which the criminal system was in crisis well before the first COVID-19 tests came back positive.”
Levin says the justice system was already weakened by “the failure to consider the reality of jails and prisons when imposing sentences or pretrial detention” long before the health emergency gripped the country. But its problems were exacerbated by the failure to consider the limitation of providing sanitary conditions in facilities that held large numbers of incarcerated individuals in confined conditions.
As the number of COVID-19 cases connected to jails and prisons grew during the spring, Levin quoted a New York Times editorial calling for the release of incarcerated people and declaring that “no one deserves to die of COVID-19 in prison or jail.”
The Supreme Court has long held that “pretrial detention is not punishment.” Yet holding people with preexisting conditions in pretrial facilities because they cannot make bail amounts to punishment even before they have been found guilty of any offense, Levin wrote.
“When a judge sentences an immunocompromised defendant to a carceral term, she is not just deciding that this defendant should be segregated from society or should be denied a range of basic liberties,” continued Levin.
“Rather, the judge has effectively decided that it is acceptable for the defendant to be exposed to a potentially fatal illness.”
These life-or-death issues became clear when, on April 5, Michael Tyson, a 53-year old man arrested for a technical parole violation, became the first reported person in New York City’s Rikers Island facility to die from the coronavirus.
But even outside of the pandemic context, such inappropriate decisions are routine, Levin writes.
Characteristics like race, class, gender identity, sexuality, and mental health may all “dramatically alter” someone’s experience while being incarcerated. The life, health and safety of individuals is not always considered during sentencing—a reality exposed by the pandemic, according to Levin.
“Advocates and officials had come to accept the logic of decarceration: any decision to put a person in a cage was a decision to risk exposing them to the virus,” he wrote.
To take the perspective of decarceration was to literally save lives. But this is where, Levin says, the mirage of a “single monolithic system” is lifted.
A Disconnected System
The limitations of thinking of “the criminal system” as one that is universal across the United States begin with the thought that any and every new policy or reform suggested cannot be enacted on a widespread scale.
Levin provides examples of how different cities took individual approaches to compassionate release. For example, between early March and mid-April, authorities in Denver reduced their jail population by 41 percent; but Washington D.C. lowered its jail population by just 21 percent.
Moreover, “some states, like Michigan and Wisconsin, took drastic action, ramping up parole grants and compassionate releases” while others, “like Kansas and Oklahoma moved much more slowly, identifying high risk individuals, but only releasing a small percentage of them.”
And, while some states completely suspended in-person probation and parole visits to replace them with online versions, other states continued with “business as usual,” the paper said.
Nevada and Hawaii have yet to suspend medical co-pays for people in state prisons, and there were weeks of disparity among multiple state prisons’ visitation rules that could have easily exacerbated the spread of the virus behind bars, as person-to-person contact was still going on in March and April, the Prison Policy Initiative found.
The lack of a common approach was deadly, said Levin, noting that many at-risk inmates have died as a result of inaction, and coronavirus cases have spiked behind bars across the nation,
According to figures compiled by The Marshall Project and Associated Press, as of June 9, at least 43,967 prison inmates had tested positive for coronavirus, with at least 495 deaths.
According to Levin, the failure to address disparities in the treatment of incarcerated individuals at risk from the coronavirus not only illustrates the lack of consistent corrections policies but “provides an opportunity for reform.”
Policymakers should “consider the ways in which the institutions of criminal law are not just responsive to crisis; they also create crisis,” Levin argued.
The forthcoming paper can be accessed here.
Andrea Cipriano is a TCR staff writer.