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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.