Prisons and Pandemics

Abstract

This Article examines the public health response to COVID-19 within federal and state prisons and local jails. Prisons and jails are often a hotbed of airborne infections like COVID-19 as a result of chronic overcrowding, unavoidably close living quarters, and incarcerated people’s underlying health risk factors. Proposals for handling coronavirus vary but tend to include the incorporation of prevention measures within congregate settings as well as the return of individuals to their local communities in order to facilitate physical distancing. This Article identifies ethical tradeoffs and sets priorities for incarcerated people’s return to communities. In Parts I and II, we provide background on why the COVID-19 pandemic is especially dangerous within correctional facilities and lay out the various enacted and proposed public health responses. In Part III, we provide moral, practical, and legal arguments for supporting the early release of incarcerated individuals that stand independently of specific views about criminal detention and theories of legal punishment. In the last part, we set priorities for which individuals to release first. These are individuals who (1) have low risk of recidivism for a violent offense, (2) are being held pretrial, (3) have high risk of mortality from COVID-19, (4) are nearing the end of their sentences, and (5) have custodial responsibilities to third parties.

Keywords: Prison, Jail, COVID-19, coronavirus