Before the pandemic, the United States incarcerated a greater share of its population than any other nation in the world.1 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.2 Jails and prisons have become hotbeds for the novel coronavirus to spread because of overcrowding, sub-standard facilities and the close physical proximity of inmates and staff. Jails and prisons already house large numbers of individuals with chronic diseases and complex medical needs who are more vulnerable to the disease. In light of these circumstances, some federal, state and local corrections agencies have begun to rethink who needs to be in detention, and who should be released. But immediate action is needed to reduce the risk to these individuals and our overall public health infrastructure.
Low-level offenses should be diverted from formal prosecution. Emergency bail reform procedures should be implemented to reduce jail populations and utilize community supervision alternatives to mitigate exposure to COVID-19. Courts and corrections agencies should evaluate options to release non-violent offenders to promote safety and prevent mass exposure to the novel coronavirus. Elderly populations with underlying medical conditions and inmates approaching release dates should be immediately released to parole. And returning citizens, who already faced complex challenges reentering society, should be provided short-term housing. Protect the health of those in jails, prisons and detention facilities by releasing those who pose no significant public safety risk; ensuring public health and safety, including testing and treatment, for those who remain; delaying immigration deadlines and non-detained court hearings for pandemic duration; automatically renewing work authorization and non-immigrant status; and suspending the harmful public charge rule.
The mass incarceration culture of our criminal justice system has resulted in 40 years of unprecedented growth in prison populations with the establishment of the for-profit private prison industry as its cruelest result. Unfortunately, the Trump Administration rescinded the Obama-era order to phase out private prisons which acknowledged that they incentivized mass incarceration.3 But in recent years, states have begun to take action against use of for-profit private prisons.4 The COVID-19 pandemic should be a game changer for how we as a nation approach incarceration. Because for too long, prisons have been nothing more than human warehouses. As prison populations begin to decrease in light of the novel coronavirus, the federal and state governments should phase out the use of private prisons beginning now.