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Coronavirus, Jails, and the Conscience of a Community

This is the speech every local jailer in America needs to give today as they release at-risk prisoners, writes Brennan Center Fellow Andrew Cohen.

March 23, 2020

Sher­iffs and offi­cials across the coun­try are slowly releas­ing pris­on­ers from city and county jails in an effort to control the spread of the coronavirus and to give at-risk pris­on­ers a better chance of surviv­ing. A few dozen here. A few hundred there. These releases are happen­ing, sporad­ic­ally, in South Caro­linaFlor­idaNew YorkOhioCali­for­niaTexasNew Jersey, and other places. But they are not happen­ing every­where and not nearly to the extent they should be to avoid what could be a cata­strophic loss of life behind bars.

At any given time there are maybe 600,000 people imprisoned in our city and county jails — plus tens of thou­sands of people who work there. It is not in the nature of most jail­ers to advoc­ate for the release of pris­on­ers, of course. But we’ve reached a point in the pandemic where such meas­ures are a prac­tical neces­sity and no longer an act of polit­ical suicide. It already may be too late, but here’s what local jail­ers (your sher­iff, your police chief, whomever runs the jail) can and should say to their local audi­ences, their constitu­ents if you will, to explain the need for bold action: 

Our job as jail­ers is not just to mete out punish­ment or ensure that the condemned are forced to serve out their duly enforced sentences. It is not to seek justice or vengeance. We are, as judges often say to jurors before delib­er­a­tions, the “conscience of our communit­ies,” and we are all respons­ible both for public safety and public health. That means we are respons­ible for the welfare and safety of the men and women who cycle in and out of our jail. And it means we also are respons­ible for the health and safety of the dedic­ated public servants who work in our jail, to their famil­ies at home, and to the community we live in and support. 

The major­ity of men and women serving behind bars in our jail are not viol­ent crim­in­als. In many cases they have not yet been found guilty of the crimes with which they are charged. Many are in our jail because they cannot afford to pay bail to get released. Some are there because of some tech­nical viol­a­tion of their parole or proba­tion. It is import­ant, now espe­cially, to under­stand that our jail, like most jails across the coun­try, are not places where the so-called “worst of the worst” are frequently housed. We are not a maximum-secur­ity prison. We are no “super­max.” We have no death row.

In normal circum­stances, when times are good, our jail does not have all the resources it needs to keep all pris­on­ers in safe and hygienic condi­tions all the time. We constantly have short­ages of supplies and staff, and yet we usually are able to make do. But of course, we no longer live in normal circum­stances. We live now during a pandemic that threatens to run unchecked through our community if we don’t take drastic action to slow its path. We are being asked to do this in our own lives and so we must do this on behalf of the people entrus­ted to our custody and control.

That’s why, today, I am announ­cing some profound changes in our jail to combat the spread of the deadly coronavirus. I have ordered all pris­on­ers over the age of 60, and those with medical condi­tions that make them partic­u­larly vulner­able to the virus, to be released imme­di­ately. We will be coordin­at­ing with their famil­ies to make arrange­ments to take them home. We also will try to make arrange­ments for those who do not have homes to go back to. This is a “Get out of Jail” card but it’s not a “free” one. When this is all over we’ll circle back to these people and decide then whether we need them back behind bars.

I also am order­ing the imme­di­ate release from deten­tion of all men and women who are charged with nonvi­ol­ent crimes and who would already be home if they or their friends and family had enough money to bail them out. I do not believe the release of these people will endanger public safety. Let me put that another way: the public safety of this community is endangered more by requir­ing these men and women to stay behind bars during a pandemic than it would be if we release them, on their own recog­niz­ance, while we devote our limited resources to combat­ing the conta­gion within our jail.

This order extends to those young men and women who are currently in some form of juven­ile deten­tion in our county. Unless they have been charged with a viol­ent crime, and only a relat­ive few have, I am order­ing them back home to their famil­ies or custodi­ans. They should be at home to help their parents get through the hard­ship this virus will bring to every Amer­ican family. And their parents should have the oppor­tun­ity to help their chil­dren face what we all are about to face. There will be a time when we will ask these young men and women to face the consequences of their conduct. But that time is not now.

Those accused of viol­ent crimes now in our jail, and those who reas­on­ably pose a threat to others were they to be released, will remain. We will work with local judges and prosec­utors, and use our common sense, to determ­ine who these pris­on­ers are. And in any event, prosec­utors should not pursue charges for nonvi­ol­ent offenses to avoid send­ing more people to jail who don’t abso­lutely need to be there right now. Our police have more import­ant things to do today. And so do prosec­utors, who should devote their time and energy now only to the most seri­ous cases.

I recog­nize that these meas­ures will be criti­cized by some as a threat to public safety in our community. I disagree. I don’t think the people we are releas­ing today are going to go out and start a crime wave. I think they are going to go to their home, if they have one, and try to stay alive surroun­ded by their friends and family. In any event, let’s circle back in a few years and compare the number of lives that might be spared by the actions we are taking today — the lives of both staff and pris­on­ers — with the number and nature of crimes that are commit­ted by the people we are releas­ing. I feel confid­ent the numbers will vindic­ate this decision.

We also can leave for a later day the broader debate over why we keep many of these people in our jail in the first place. That’s an argu­ment we can all have in the run-up to the next elec­tion or when the pandemic no longer darkens our door. And if you all decide that you disagree with the policies I am imple­ment­ing today, if you decide that I should have kept these pris­on­ers inside a jail where I could not guar­an­tee their health or safety, you can vote me out of office. As the “conscience of our community” my conscience will be clear that I did the right thing at the right time.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.