The current COVID-19 public health crisis has rendered the nation’s jails and prisons ticking time bombs. In the confined spaces of the carceral system the infection flourishes. At Rikers Island in New York City the rate of infection among the incarcerated population is an estimated seven times that of the free population. The Cook County Jail in Chicago boasts the highest infection rate in the country. Inmates post desperate pleas for help on their cell windows: “Help we matter2.” In other jurisdictions, the lack of testing renders rates of infection a frightening and unknowable quantity.
Even before the current health crisis, overcrowding, lack of medical care, close and shared quarters, poor air circulation, and chronic understaffing made jails and prisons the perfect environment for contagions. The rapid spread of infection should come as no surprise given a population composed of increasingly older and medically compromised individuals and policies that render hand sanitizer contraband and require marginalized inmates to pay for medical care and personal hygiene supplies.
As the nation’s jails and prisons devolve into viral epicenters and the criminal justice system struggles to respond, a stark reality emerges. Any period of detention, for any reason, can be a sentence to a slow and painful death by COVID-19. In a system characterized by high incidence of detention—the current incarcerated population numbers 2.3 million people in the United States—and high rates of infection, the death toll among inmates could be staggering, to say nothing of the guards and medical professionals and their families who are put at risk as the infection spreads.
This reality is, in and of itself, alarming. But it is rendered more troubling by the fact that a disproportionate number in that population are held as pretrial detainees who have never been convicted of a crime but nonetheless languish in county jails across the country. They remain detained because they are too poor to make bail or have nowhere else to go. They are in jail because they have been arrested, accused of a crime, and are too marginal to gain their freedom in a system that was stacked against them from the start. We as a nation face the very real prospect that by failing to act in the face of this crisis, we are sentencing these men and women in our jails to infection and death without mercy, process, or conviction. We are sentencing them to die either because we fear their release, or because we are more indifferent to their welfare than we value their lives.
From a humanitarian and public health standpoint, the way forward is clear: releasing inmates will save not only lives but valuable medical resources by reducing infection rates. While some jurisdictions resort to lockdowns in an attempt to curb the spread of the virus, others across the nation have begun to release inmates who are close to the end of their sentences or who pose a low risk pretrial. Such releases are important first steps, but they are too timid and too few. Even in the face of such release policies, jail and prison populations remain high, as does the risk of mass infection. In this time of crisis and beyond, we as a nation need to have real and meaningful discussion about reforming a carceral system that is plagued with problems in the best of times and is broken and cruel in these, the worst of times.
Jenny E. Carroll is a former public defender and the current Wiggins, Child, Quinn and Pantazis Professor of Law at the University of Alabama School of Law. Her work has appeared in numerous law journals, it can also be found on her SSRN site here.