Will the Coronavirus Make Us Rethink Mass Incarceration?

At the Jefferson Parish jail, Crouch shared an intake cell with four other women. There were mats on the floor, for sleeping, and the only source of drinking water was a faucet above a toilet without a lid, where some of Crouch’s cellmates, apparently detoxing from drugs, spent the night vomiting. She draped an extra sleeping mat over her body, hoping that it would shield her from germs, but a guard chastised her—one person, one mat, she was told. Crouch asked the guards, “Y’all sure those ladies don’t have the virus?” By the time she reached Tae on the jailhouse phone, she was crying. She told her daughter, “I’ve got to get out of here before this virus gets me.”

For decades, community groups have pointed out the social costs of mass incarceration: its failure to address the root causes of addiction and violence; its steep fiscal price tag; its deepening of racial inequalities. The coronavirus pandemic has exposed another danger of the system: its public-health risks. In April, the American Civil Liberties Union worked with epidemiologists and statisticians to show that, without protective measures in jails and prisons, including rapid reductions in incarcerated populations, the virus could kill an additional hundred thousand Americans. Families of the incarcerated—along with national legal organizations, grassroots groups, and religious leaders—began to push for mass releases, focussing on defendants arrested for nonviolent offenses, those nearing the ends of their sentences, and the medically vulnerable. In Philadelphia, outside the Criminal Justice Center, protesters lined up coffins to mark the coronavirus-related death of a woman who had been eligible to be released in a few months. In Columbus, Ohio, they wore masks reading “20K by May,” the number of releases they were demanding. A team based at U.C.L.A.’s law school started a spreadsheet to track such actions, calling itself the Covid-19 Behind Bars Data Project. By mid-May, it had tallied more than five hundred legal filings and court orders, along with dozens of protests.

Some efforts accomplished in weeks or months what activists had been working toward for decades, leading to large experiments in decarceration. Since mid-March, San Francisco has reduced its jail population by nearly forty per cent, and California has made plans to release thousands of people from state prisons. In New Jersey, the State Supreme Court authorized the release of as many as a thousand detainees from county jails. Each week in April, the federal-prison population declined by around a thousand people; by May, it had reached its lowest level in two decades. In dozens of cities, cops were ordered to make fewer arrests, district attorneys dropped low-level charges, and judges vacated bench warrants for unpaid fines and other minor infractions. “Advocates on the ground have been challenging mass incarceration for so long—and now much of what we’ve been calling for, pre-COVID-19, we’re seeing it transpire,” Patrisse Cullors, the co-founder of Black Lives Matter, told me, from Los Angeles, where she’s been organizing for releases with Reform L.A. Jails. “At the local, state, and national level, this is a moment when we can collectively transform how our country relates to the most vulnerable.”

One early push occurred in Santa Clara County, California, where the country’s first coronavirus deaths were recorded. Raj Jayadev runs Silicon Valley De-Bug, a grassroots group that helps incarcerated people devise creative strategies to fight their cases. Some eighty per cent of people in the county jail are awaiting trial, often because they can’t afford bail. At weekly De-Bug meetings, families put together “social biography packets,” stuffed with personal photos, letters, and eight-to-ten-minute videos, to present a fuller picture of defendants. In mid-March, as the virus spread, Jayadev worked with Carson White, an attorney with the public defender’s office, who compiled a list of people seeking release from the county jail. White negotiated with prosecutors, the sheriff’s office, and pretrial services, and an agreement was reached to shrink the jail’s population by twenty per cent. On March 19th, the county released an initial group of about a hundred and fifty people. Since then, the jail’s population has been reduced by more than a thousand. “This moment has flipped the script on mass incarceration,” White told me. “It’s laid bare that caging huge swaths of our society isn’t necessary—it’s just convenient.”

Even after mass releases began, Jayadev feared that many defendants were being “left off the rescue boat,” particularly those charged with felonies. “Just because someone has been accused of a crime with a higher bail schedule doesn’t mean they deserve a potential death sentence,” he said. With court systems shutting down because of the pandemic, it was harder to advocate for defendants. “I don’t even have access to my clients right now—that whole system is out the window,” White told me, in March. Normally, she could bring a defendant before a judge within two days of filing a motion; now a client’s only chance for release was a prosecutor’s mercy. (In April, the county court in Santa Clara began hearing a limited number of cases, with a focus on defendants with a strong likelihood of release.) Many clients had agreed to attend drug-treatment or mental-health programs as a condition of their release, but the programs had been suspended. White had a ninety-one-year-old client with dementia who had been arrested following an outburst in his home; he was being held in the jail’s infirmary with at least one coronavirus patient. “My in-box is full of heartbreaking e-mails from community members asking if our office can help release their sister with asthma, their father with emphysema, their fiancé awaiting a lung biopsy,” she told me.

Jayadev was working with Johnny Page, who was being held in the Elmwood Correctional Complex, in Milpitas, California, awaiting trial on drug charges. “He has Type 2 diabetes and he’s not taking his insulin shots,” Rebecca Rivera, the mother of his child, told me; several sheriff’s deputies had tested positive for COVID-19, and Page refused to enter the common area of the jail, where medical staff administered the shots, because he’d noticed unsanitary practices there. “My son keeps asking, ‘Is Dad O.K.?’ ” she said. Page called her daily, with updates: men were shackled in dirty chains; they slept in bunk beds a few feet apart. Rivera jotted down notes—“The inmates are starving as they have not been allowed canteen for two weeks”—and urged Page to organize.

In late March, I spoke with Page on the phone. He and other men on his cellblock had drawn up a list of fifteen grievances. Since COVID-19 hit, the commissary had shut down, and the men could no longer buy meals, soap, Tylenol, or stamps and stationery to communicate with their families. (The phone service at the jail is run by a private company that charges steep fees.) Food was being delivered by people who had touched potentially contaminated surfaces. He asked if he could read me a statement. “We, the inmates in this county jail, want the public to know that we are human,” he said. “We are undergoing treatment that is inhumane and unjust.” Without swift depopulation of the jail and other protective measures, he went on, “the virus will spread like a California wildfire.” In the weeks that followed, officials instituted reforms, which included distributing masks and agreeing to a health inspection. On April 18th, after California temporarily suspended cash bail for those charged with most misdemeanors and nonviolent felonies, Page was released. He is now working with Silicon Valley De-Bug to help people still trapped in jails. “By far, the most effective driver of change right now has come directly from those locked up, on the inside,” Jayadev said. “Their voices, their demands for survival.”

On March 16th, at Crouch’s red brick home in New Orleans, where pink azaleas were on the verge of blooming, Tae managed to rustle up the money for her mother’s bail—nearly four thousand dollars. Crouch would be free by dinnertime; she could watch Lifetime that evening, curled up with her kids. But Crouch called her daughter in the afternoon. “I’m not getting out,” she said. She was being transferred to the jail in Orleans Parish, a neighboring jurisdiction, for reasons she didn’t understand. “I don’t even know why I’m here anymore,” she said. Tae promised to investigate, but, when she called officials at the jail and other authorities, “all I got was closed doors and brick walls.”

Even by mid-March, as infection rates began to soar, Orleans Parish resisted public pressure to reduce its jail population. Police officers continued to make arrests for nonviolent crimes, including graffiti, failure to return a rental car, and obstructing sidewalks. In bail hearings, when public defenders raised the threat of COVID-19, the district attorney’s office accused them of trying to “exploit” the coronavirus to benefit their clients. “This is hardly a time to encourage lawlessness,” the D.A.’s spokesperson told the press. Prosecutors opposed some bond reductions, especially for defendants without a home address, arguing that, if they were released, they would “pose a threat to the general public by potentially spreading the virus to others.” This logic was pernicious; according to an open letter written by the dean of Tulane’s public-health school and other experts, the longer the parish delayed releases, the more genuine the threat of mass infection in the jail was—and thus the more likely it would be to spread to the public. (The D.A.’s office said that it has instructed prosecutors to stop making this argument in bond hearings.)

“We continue to probe the conditions in our prisons that are related to covid-19 Part III follows”