COVID-19, Incarceration and the Criminal Legal System

Abstract

America’s status as the world’s leading jailor is a key factor rendering it especially vulnerable to the COVID-19 pandemic. Contact with the criminal legal system is a documented driver of health harms on both individual and community levels, with disproportionate impact on people of color. COVID-19 magnified the deleterious public health impact of policing, prisons, community supervision, and other elements of the criminal legal apparatus. On the structural level, decades of lavish spending on the United States’ vast system of control and punishment has crowded out investments in public health prevention and social support infrastructure, making the nation uniquely ill-prepared to weather the COVID-19 disaster. In a tragic illustration of politics trumping science, elected officials and correctional administrators ignored calls to make rapid depopulation of correctional facilities a core component of the U.S. COVID-19 response. The number of people released remains devastatingly small, while crowded, unsanitary, and inhumane conditions persist in many facilities. Predictably, this resulted in explosive outbreaks of COVID-19 behind bars, among correctional personnel, and in surrounding communities. But it is not too late: states and the federal government can still take immediate action to protect those who remain incarcerated; chief among these steps are (1) depopulating correctional facilities to reduce the number of people held in congregate settings and (2) prioritizing people incarcerated and correctional staff for vaccine distribution. When it has occurred, depopulation of correctional settings is rarely paired with meaningful efforts to connect reentering individuals to vital supports. Community supervision systems largely failed to relax onerous probation/parole requirements. In many jurisdictions, police have taken on enforcement of physical distancing and other public health orders; a sharply disproportionate burden of which has fallen on Black, Indigenous, and other people of color. The crisis in American policing has been especially on display when misinformation-fueled protests against pandemic controls like masks and restaurant closures receive tacit — or express — support from law enforcement while protests against brutality have been met with violence. This Chapter discusses how the U.S. criminal legal system continues to shape its COVID-19 response. It (1) explains how the criminal legal system continues to exacerbate the ongoing public health emergency, and (2) focuses on ways in which the incoming Biden-Harris Administration can begin to undo the damage wrought by the outgoing federal administration through neglect and missteps. For more information on COVID-19, incarceration, and the criminal legal system, please see Chapter 31 in Assessing Legal Responses to COVID-19: Volume I. This paper was prepared as part of the COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.