COVID-19 Has Reshaped the Justice System; But Will It Last?

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Sculptural Group by Daniel Chester French. Photo by Eden, Janine and Jim via Flickr

The decline in prison populations and other dramatic shifts in the justice system driven by responses to COVID-19 are unlikely to become permanent without robust support from policymakers at every level of government.

That was the warning echoed by leading health and corrections experts this week in a webinar exploring the impact of the coronavirus on U.S. corrections and courts.

Since the virus emerged early this year, 41 states and 48 local and county systems have instituted some form of early release for medically vulnerable inmates, in what observers have called a promising start in reducing mass incarceration.

At the same time, many courts and community supervision systems across the country have moved to eliminate bureaucratic inefficiencies that discriminated against marginalized populations through the development of online or virtual procedures. Some counties have reduced jail admissions for minor non-violent offenses.

Hernandez Stroud

Hernandez Stroud

“While these policies are only temporary, they raised the question about whether—if we feel confident that releasing people will not pose a safety risk—these people need to be in prison at all,” said Hernandez Stroud, counsel for the Justice Program of the Brennan Center for Justice at New York University School of Law.

The figures on early release and reduced admissions, based on data cited by Stroud from studies by a number of think tanks, suggest that America’s justice systems have been significantly reshaped since the onset of COVID-19.

But will the shift be followed by policies that incorporate those changes?

Speakers at the webinar, organized by the Center on Media, Crime and Justice at John Jay College, publisher of The Crime Report, were by turns hopeful and pessimistic.

“It would seem that if there’s enough political pressure, maybe some of those changes could stick, but there just doesn’t seem to be the appetite, even amid a pandemic, for lasting change,” said Stroud.

He observed that while some of the shifts may have been driven by a growing acknowledgment of the disproportional racial and economic impact of mass incarceration, an equally important factor was concern about the virus spreading “beyond the prison wall” by prison staff.

“This is consistent with the reality before the pandemic,” he said. “If there weren’t some threat to the lives or livelihood of people who have political power, I don’t think there would have been as much appetite for some of the very common-sense moves we’ve seen, such as not detaining people who don’t pose a public safety risk.”

Other speakers were slightly more optimistic, noting that some of the changes would be hard to reverse.

“We have been asking our magisterial district judges to focus on the issue of public safety,” said Judge Kim Berkeley Clark, president judge of the 5th Judicial District of Pennsylvania, where courts have mandated the release of over 1,200 jail inmates from jails.

Kim Berkeley Clark

The Hon. Kim Berkeley Clark

“We feel [the threat to public safety] is the reason someone should be detained, as opposed to other reasons.”

Since the pandemic, the population of inmates held in federal facilities dropped by 14 percent and the number of prisoners in U.S. jails dropped by 22 per cent. Immigration detention facilities registered a drop of 44 percent.

State prison populations declined by just 4.2 percent between December 2019 and May 2020.

Nationally, there was an overall average decline of 11 percent in the number of individuals behind bars in 2020, said Nazgol Ghandnoosh , a senior research analyst at The Sentencing Project.

“But in many jurisdictions, they’ve begun to reverse that trend,” she noted.

Still, the impact of COVID-19 has been felt at every level of the justice system, the webinar was told.

Changes included:

      • Four states, ranging from conservative jurisdictions like Oklahoma to liberal states like California have halted new admissions to state prisons for minor nonviolent offenses.
      • Eleven states have suspended all medical co-payments for inmates;
      • Six states have allowed “virtual check-ins” via telephone, email or video call for individuals on parole or probation, replacing a requirement for face-to-face contact that was difficult for many released inmates to accomplish even before the pandemic;
      • Twenty jurisdictions around the country have enacted policies to reduce jail admissions.

“Just as the pandemic has exposed pressure points of our highly polarized government and revealed a need [to address the] gross economic inequality of our health system, so too it has opened eyes to the many failures of our prison system and of our perspective on crime and punishment,” Stroud said.

But the window for more fundamental change in the corrections system has also been narrowed by the broader challenges of poverty and racism underlying American society, the webinar was told.

“One of the struggles early on was that basically people were being released into homelessness,” said Dr. Alysse Wurcel, the infectious diseases liaison for the Massachusetts Sheriff’s Association and co-founder of the COVID Prison Project.

Alysse Wurcel

Dr. Alysse Wurcel

Noting the different figures for decarceration in Massachusetts counties, Dr. Wurcel pointed out that authorities feared that releasing people into an “unsafe world” without proper precautions could result in more tragedy.

“We didn’t have enough tests, and people couldn’t be accepted into homeless shelters unless they had a test,” she said.

Stroud and other speakers said hopes that the pandemic would serve as a “catalyst for real change” in the system were not necessarily misguided.

“Should we applaud the reforms made in the justice system to confront COVID-19?” he asked. “Of course; but we should also be asking why these changes hadn’t been implemented years ago.”

While the drive to lower infection rates among inmates, prison staff and their families was important, it wasn’t the full story, he said.

“The story is our country’s willingness to lock away people and throw away the key…it is about why we have allowed such a broken system to flourish.”

The program was the second in a series of three webinars for journalists reporting on health and justice, supported by the Jacob & Valeria Langeloth Foundation. The third and final webinar in the series, exploring how law enforcement has been impacted by COVID-19, is scheduled for Dec. 9.

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