Why people are being released from jails and prisons during the pandemic

As coronavirus cases rise in America’s jails, some states have instituted early release. But advocates say that isn’t enough.

As the number of confirmed cases of Covid-19 within prisons and jails continues to rise, correctional facilities are releasing incarcerated people early to reduce the size of their populations.

The US has the largest incarcerated population in the world — about 2.3 million people — with many crammed into facilities where they share everything from cells to showers to dining spaces. That makes them more vulnerable to the spread of infectious viruses like Covid-19. In fact, there’s already been a surge of cluster cases around the country: As of April 1, more than 231 inmates and 223 staff members have been infected at the Rikers Island jail complex in New York; meanwhile, 134 detainees have tested positive in Illinois’s Cook County jail.

“Once [the virus is] there, it will spread like wildfire because there’s basically no way in the crowded conditions that exist in current jails and prisons to implement social distancing,” Sonja Starr, a criminal law professor at the University of Michigan, told Vox.

In response, officials have begun to take action. On the federal level, Attorney General William Barr released a memo last week that ordered the Federal Bureau of Prisons to identify “at-risk inmates who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement.” His plan, however, has been criticized because these inmates will be identified by an algorithm that the Marshall Project reports is biased toward white people.

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And realistically, it’s state officials that need to take bolder action: There are only about 226,000 people locked up in federal facilities compared to the 1,291,000 in state prisons, according to the Prison Policy Institute. Some have begun to release the incarcerated. Most recently, California announced that it would let out 3,500 nonviolent inmates in the next 60 days — the most drastic measure taken by states so far. New York City Mayor Bill de Blasio also announced the city has released 900 people as of March 31.

Most states, however, are leaving a large incarcerated population out of the conversation. These are inmates that are more vulnerable to the virus, such as those who committed violent crimes but are no longer a threat because they are sick and old, said Nicole Porter, director of advocacy at the Sentencing Project. And without the release of these additional inmates, it is unlikely that correctional facilities will have the room, personnel, and resources to allow social distancing among incarcerated people, she said.

Ultimately, bold reforms on both the state and federal levels will be needed to protect this vulnerable population, Starr said. And these actions will have to be taken fast if correctional facilities want to slow down the escalating number of cases.

“We do not have the luxury of time here, and we do not have the luxury of being able to just take small steps and hope that this problem is going to go away,” she said.

The virus is already spreading rapidly within correctional facilities

Correctional facilities are particularly vulnerable to the spread of infectious viruses like Covid-19 because inmates live in close quarters with few resources for proper hygiene.

The number of coronavirus cases among the incarcerated population is already exploding across the country: In the span of about 10 days, the number of positive cases in Cook County’s jail rose from two to 134. And in the weeks since its first positive case on March 18, Rikers has confirmed at least 230 more inmates with the virus. Three incarcerated people have already died from Covid-19 in Louisiana, where at least 30 people, including staff, have tested positive in a single federal facility in Oakdale.

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Overcrowded prisons and jails have long been a problem in the US, even before the pandemic hit the country. Overcrowding can lead to an uptick in violence, a failure to provide adequate health care, and inhumane practices such as letting inmates sleep on the ground, according to the ACLU. And during a pandemic, this issue becomes particularly problematic because there’s no room for inmates to social distance, according to Erin Haney, policy director at REFORM Alliance.

“Even if we were going to say, ‘Okay, we realize we can’t do this whole, but let’s do some sort of amended version of it,’ it really is impossible when you’re looking at the number of people who are behind bars and the conditions that they live in, and the constant interaction that they have with correctional officers and with correctional staff who are coming in and out,” she told Vox.

There is also the issue of basic hygiene. Hand sanitizer is illegal in most prisons because it can be used to brew toxic alcoholic drinks. And most correctional facilities do not provide soap; inmates have to pay about $1 for a bar of soap, which is a hefty price considering that most inmates make less than $1 an hour. (Meanwhile, some inmates at Rikers are being offered $6 an hour to dig mass graves during the pandemic, according to the Intercept.) A Washington, DC, lawsuit filed on March 30 detailed the complete lack of basic cleaning supplies, such as paper towels and cleaning solution, at a city jail.

Poor hygiene is a problem that inmates in Rikers face as well — which is a major concern since it’s been hit hard by Covid-19. The New York City prison complex is a testament to the dangers correctional facilities face once the virus spreads behind bars. The infection rate for the city’s jails was 3.91 percent, which was nearly eight times higher than the city’s entire infection rate of 0.5 percent — and New York City has the highest number of coronavirus cases in the country. Rikers’s chief physician has been calling it a “public health disaster.”

It’s a scary situation for incarcerated people within the complex as there’s little they can do to protect themselves from the virus. One inmate told BuzzFeed that he was “living in constant fear” because he had no access to medical staff despite symptoms that suggested an infection. As a result, 45 incarcerated people staged a strike on March 22, demanding more cleaning supplies, less-crowded living conditions, and more communication with the outside world.

Without any major changes to the status quo, an alarming number of people could die in correctional facilities, Haney said.

“Recognizing the basic humanity and dignity of all of us is incredibly important,” she said. “And people who were sentenced to jail or prison time weren’t sentenced to death by a virus.”

A growing number of states are releasing incarcerated people early, but advocates say too many people are being left out

At the federal level, there are plans to address the vulnerability of the incarcerated population, but advocates are questioning the effectiveness — and selectiveness — of these measures.

Although Barr directed the Bureau of Prisons (BOP) to identify at-risk populations so that they could be released for home confinement, the algorithm (called Pattern) used to select these inmates is biased toward white people, according to a DOJ review. The BOP also announced that all inmates within federal facilities would be quarantined for 14 days. While at first glance the measure might seem like a smart move to limit exposure, advocates have been pointing out the cruelty of keeping inmates locked up in a cell for two weeks — especially when they share both a bed and a toilet in a small space.

Some states have made better calls on how to handle their incarcerated population. Even before Barr’s announcement, a growing number of states had already been pushing for early releases to spare their most vulnerable populations from the virus and free up some room for social distancing.

The boldest measure has been taken by California, which plans to release 3,500 nonviolent inmates in the next 60 days — although advocates say it’s doesn’t make much of a dent in the state’s large incarcerated population of about 122,000, according to BuzzFeed News. In addition, prisons are no longer accepting inmates from county jails, another attempt to free up space.

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New York City also released at least 900 nonviolent offenders by the end of March in response to the growing number of cases, including hundreds from Rikers. Thanks to these releases, the city now has its lowest jail population since World War II, lingering at about 4,900 people.

And even if states aren’t issuing blanket orders, some governors are giving more freedom on the county level to release incarcerated people. Both Michigan and Colorado governors have signed executive orders that allow local officials to determine the scope of compassionate releases, which would allow sick and elderly people to leave.

Meanwhile, some states have resisted taking more drastic measures to protect its incarcerated population, which could lead to mass outbreaks if left unchecked. When officials from Harris County and Dallas County jails began to plan the release of hundreds of inmates, Texas Gov. Greg Abbott issued an executive order that would prohibit jails from releasing people accused or previously convicted of violent crimes if they could not pay for their bail — a measure that’s already been ruled unconstitutional in federal courts for discriminating against poor people. And although Abbott defended his decision as an attempt to protect citizens from potential harm, the irony is that this same group of people could still walk out of jail if they can pay their bail, according to Texas Tribune.

“If followed, this order will see jails bursting at the seams with minor drug offenders, homeless people whose most recent ‘crime’ was something like simple trespass, and everyday citizens picked up on the flimsiest of allegations that will eventually be dismissed after months locked up,” Democrat Texas State Rep. Joe Moody said on Twitter.

Louisiana, where outbreaks have been on the rise, has also resisted releasing its incarcerated population early. Instead it plans to send those that are old and unhealthy to Angola prison, a detention complex that usually houses people serving longer sentences, according to the New Orleans Advocate. It’s a move that some say could cause more harm to the vulnerable population by grouping them together, and New Orleans advocacy group the Promise of Justice Initiative filed a temporary restraining order to halt the transfer.

If governors really want to protect their incarcerated population, advocates argue, bolder measures have to be taken — even among the more progressive states like New York and California. As of now, actions have been “modest and limited,” according to Porter, particularly because only nonviolent inmates are being released. Even in California, the state has rejected requests from attorneys to expand its release of inmates to those who are unhealthy and elderly, regardless of their crime.

By leaving out incarcerated people who are old and sickly because of their violent crime background, states are excluding a large chunk of people who no longer pose a threat to society due to their deteriorated mental and physical health, Porter said. And without the release of these inmates, there’s no way correctional facilities will be able to make room for social distancing.

“These are people who have spent a significant amount of time in prison, who have participated in a range of rehabilitation programs,” she said. “And if they qualify under the categories that are being called for — medically vulnerable, elderly — many of those individuals have served substantial periods of time in prison and have paid a severe criminal debt given the amount of years that they’ve spent behind prison walls.”

Protecting these people through early release isn’t just for their own good, Haney said. It will also prevent the virus from spreading to staff members, who could then bring it into their own neighborhoods as they commute back and forth from home. At Rikers, 223 staff have reported testing positive for coronavirus.

“There’s a tendency to think of prisons as being sort of separate from the rest of communities,” Hanley said. “And this virus really shows us how interconnected we all are. So the idea of having safer prisons and safer jails means that we also have safer communities.”