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Coronavirus and Criminal Justice: How the Pandemic Reveals the Brutal Capitalism of American Mass Incarceration

Posted on April 17th, 2020 in Coronavirus, Criminal Justice by James Deal
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The rise of the Coronavirus pandemic has led to a massive disruption of the status quo in America, forcing many of our social and political institutions to either cease operations or drastically alter their functions in order to curb the spread of the virus. One institution that's been hit particularly hard by the pandemic is the criminal justice system, which has found jails and prisons have been a hotspot for the spread of Coronavirus given the close proximity of inmates, the lack of personal protective equipment (PPE), poor sanitation, outdated facilities, and crowded, often dorm-style, housing facilities. 

In Chicago's Cook County jail, arguably the nation's largest single source of confirmed Coronavirus cases, 2 inmates tested positive for the virus on March 23rd. As of April 15th, 3 individuals have died and "nearly 600 detainees, jail correctional officers and other sheriff's department employers have been infected by the COVID-19 virus." However, the jail has noted that "those figures most likely downplay the actual problem... because the vast majority of the jail's 4,500 inmates have not been tested." Despite the jail having claimed to have enacted stricter sanitation practices and more rapid testing for the virus amongst inmates, the number of cases has continued to rise exponentially. According to a suit filed by civil rights attorneys against the Cook County jail:

"Detainees continue to reside in dorms, sleeping in close proximity to others, and in cells with two people. Detainees also continue to share common areas, sinks, showers, toilets and eating areas."

While the Cook County jail has been hit the hardest by the spread of the virus, these problems are hardly unique to Chicago. As of Wednesday, April 15th, a "total of 451 federal inmates and 280 Bureau of Prisons workers have tested positive for the virus… with 17 inmate deaths at federal prisons since late March."

The rapid spread of the Coronavirus through our penal system has forced drastic changes to policies at both the state and local level in terms of the day to day operations and larger procedural matters. Initially, jails and prisons sought to stop visitation, increase the frequency of sanitation, and isolate prisoners displaying symptoms; however, these practices have proven to be ineffective at drastically reducing the spread of the virus throughout these facilities. Attorney General Barr has recently mandated federal watchdog oversight, asking the Inspector General's office to

"conduct an assessment of the federal prisons that were becoming hot spots and analyze how the department can improve best practices… The remote inspections will include Bureau of Prisons facilities, halfway houses and prisons with contracts to house federal inmates, all of which will be reviewed for compliance with government guidelines."

Mass IncarcerationCourtesy: Prison Policy Initiative

While an increased focus on sanitation practices as well as methods to otherwise curb the spread within prison populations are important, they fail to truly address the larger issue: the cramped conditions as a result of US mass incarceration. The true extent of mass incarceration in the US can be seen when US population and prison population to their corresponding global populations as, "Despite making up close to 5% of the global population, the U.S. has nearly 25% of the world's prison population." According to the Prison Policy Initiative

"The American criminal justice system holds almost 2.3 million people in 1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities, 3,134 local jails, 218 immigration detention facilities, and 80 Indian Country jails as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories."

This overcrowding of our penal system has made it impossible to safely practice social distancing within these facilities as inmates are often packed into dorm-style housing and forced to share toilets and showers with many other inmates. The spread of the virus has forced officials to recognize the importance of drastically reducing the number of inmates at these facilities. Across the country, thousands of inmates have been released from state and local jails. At the federal level, Attorney General Barr has authorized the release or home confinement of vulnerable individuals and offenders not imprisoned for crimes either violent or sexual in nature. Since the 26th of March, "federal prison officials said they have moved nearly 800 inmates… to serve out the remainder of their terms at home." Yet, this disruption has gone largely unnoticed by those not immediately affected by these changes, which begs the question: why weren't these reforms widely implemented prior to this pandemic?

There is a lot of room for improvement in our justice system, ranging from reducing the number of incarcerated individuals, shifting the focus from retribution to rehabilitation, ending policies that effectively discriminate against low income offenders such as cash bail and tickets, and abolishing private prisons. However, ending the practice of cash bail would have arguably the largest impact on reforming our broken criminal justice system and reducing the populations in jails. In essence, the cash bail system works as follows

"the judge sets a bail amount that the defendant must provide in exchange for pretrial release. The funds are returned if the defendant presents themselves in court as required, but are forfeited otherwise. Those who are able to secure financial release typically rely on the services of private bail bondsmen, who will post bail on their behalf in exchange for a nonrefundable premium. In many cases, defendants are required to post bail that they cannot afford (or they are unable to afford the premium); this results in their detainment for weeks or even months until trial."

Courtesy: Dallas Observer

Despite our justice system's presumption of innocence, individuals awaiting trial must remain incarcerated until the adjudication of their guilt at a court date. Beyond the obvious ethical issue of incarcerating potentially innocent individuals that simply don't have the financial means to pay bail, the system of cash bail causes many harms. First and foremost, the cash bail system effectively "criminalizes poverty, as people who are unable to afford bail are detained while they await trial for weeks or even months" and ultimately perpetuates systemic "inequities in the justice system that are disproportionately felt by communities of color and those experiencing poverty." Furthermore, even short periods of pretrial detention can often result in the accused losing their housing, job, or custody of their children, which can all serve to severely disrupt and negatively impact their life upon release. Studies have also indicated that individuals who are held in jail pretrial are more likely to be rearrested upon their release, which only serves to boost recidivism and reinforce cycles of arrests and incarceration.

Opponents of ending the cash bail system typically argue that forcing the accused to provide cash as collateral to secure their pretrial release is the only way to ensure individuals attend their court proceedings. However, there is actually significant evidence indicating that this is not the case. Studies from the jurisdictions that have ended the practice of cash bail show that the accused are just as likely or more likely to attend their court date than those released pretrial with cash bail. Washington D.C. is one of the most prominent jurisdictions that has ended the commercial practice of bail/bonds, and:

"D.C.'s efforts have been highly successful. 94% of defendants are released pretrial — of this group, 91% make their scheduled court dates and 98% are not arrested for a violent crime while awaiting trial."

But just how big of an impact would ending the cash bail system have on our criminal justice system? According to the Pretrial Justice Institute:

"Six out of 10 people in U.S. jails—nearly a half million individuals on any given day—are awaiting trial. People who have not been found guilty of the charges against them account for 95% of all jail population growth between 2000-2014."

Had systems of cash bail been banned at the federal level prior to the Coronavirus pandemic, the populations of jails across the country would have been reduced to approximately 25% of their current populations. Such a drastic reduction of the number of jailed individuals would not only make an extremely positive impact on each of their lives and the lives of their families, but also would have significantly reduced the burden on both the taxpayer as well as the facilities of these jails to house individuals. Additionally, this significant reduction of jail populations would have been critical in preventing the rapid spread of the Coronavirus in jails across the country, preventing thousands of cases and saving the lives of vulnerable individuals.

All of this is not to say that ending the practice of cash bail in our justice system would right all of the systemic injustices faced by individuals within these systems or have entirely stopped the spread of the Coronavirus in jails and prisons across the country, but it would have made a significant impact in preventing the spread and a first step to reduce the systemic inequities of our justice system. The abolition of cash bail should ultimately be coupled with reforms such as the decriminalization of all drug possession, treating addiction as a public health problem rather than an issue of criminal justice. Ending the use of private prisons too would remove the profit incentive to incarcerate individuals. However, there is ultimately no single policy action that will fix our criminal justice system and any meaningful change must come as the result of more holistic approaches to criminality, which focuses on the rehabilitation of offenders rather than prioritizing retribution.