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How Covid-19 Is Still Battering the Criminal Legal System

From vaccine barriers in prisons to massive backlogs in courts, the pandemic continues to present myriad challenges for incarcerated people.

June 16, 2021

Covid-19 brought new atten­tion to the abhor­rent condi­tions in our coun­try’s over­crowded jails and pris­ons, which saw huge coronavirus outbreaks. Despite some early gains through local jails redu­cing their popu­la­tions, prison popu­la­tions across Amer­ica saw almost no decline, and jail popu­la­tions were creep­ing upward again by Novem­ber.

Some local and state actors have attemp­ted to adjust their crim­inal legal systems and incre­mental gains have been made, but there has been resist­ance to Covid-inspired reform in much of the coun­try. This reluct­ance to embrace change has left thou­sands of people languish­ing behind bars. In the week of June 1 alone, there were at least 310 new cases of Covid-19 in pris­ons in the United States.

Incar­cer­ated popu­la­tions and the denial of compas­sion­ate release

In the first months of the pandemic, jails across the coun­try repor­ted rapid popu­la­tion reduc­tions, with the national total drop­ping 18 percent during March 2020, followed by another 11 percent drop by the end of April. But those changes did not last, and by Novem­ber, jail popu­la­tions were rising again, encour­aging the rapid spread of Covid-19 in pris­ons and jails through over­crowding.

In at least one study, hold­ing people in jail for even just for a few hours or days was strongly asso­ci­ated with the spread of Covid-19. In Chicago, each person released in March 2020 led to about five addi­tional cases of Covid-19 in that person’s zip code. Aside from the few governors who took direct action, most states did not take analog­ous steps to reduce their prison popu­la­tions, and by April 2021, numer­ous stud­ies had linked this fail­ure, among other factors, to heightened Covid-19 outbreaks inside facil­it­ies.

An import­ant element in this refusal to lower prison popu­la­tions was the denial of compas­sion­ate release peti­tions, which have been filed by tens of thou­sands of incar­cer­ated people, largely to no avail. In the first three months of the pandemic, almost 11,000 federal pris­on­ers applied for compas­sion­ate release. Ninety-eight percent of those peti­tions were ignored or denied by correc­tional offi­cials. On Febru­ary 29, 2020, the Federal Bureau of Pris­ons held 146,036 people its adult facil­it­ies. On May 13, 2021, the number had risen to 152,376. Rather than take the onset of the pandemic as an oppor­tun­ity to seri­ously decar­cer­ate, the federal prison system exten­ded its reach.

For people incar­cer­ated in state pris­ons, the compas­sion­ate release process is even more complic­ated than in the federal system, as laws vary state to state — but releases have been compar­ably rare under those vary­ing criteria, too. State parole boards also approved fewer releases in 2020 than in 2019, despite the public health crisis. And even dozens of indi­vidu­als who had already been approved for release by a parole board (or were being held in jail without a convic­tion) died behind bars in the past year.

Some states, such as Cali­for­nia and New Jersey, took delib­er­ate steps to lower their state prison popu­la­tions during the pandemic. However, even after redu­cing its incar­cer­ated popu­la­tion by roughly 22 percent over the past year, Cali­for­ni­a’s prison system is still oper­at­ing at 103 percent capa­city. Across all 50 states, the aver­age prison popu­la­tion dropped 17 percent between Janu­ary 2020 and Janu­ary 2021 — yet the limited avail­able data indic­ates that these reduc­tions were mostly due to reduc­tions in prison admis­sions, not releases.

Vaccin­a­tions behind bars

On March 30, a New York judge ordered Gov. Andrew Cuomo to offer Covid-19 vaccines to people incar­cer­ated in the state, a depar­ture from the exist­ing state policy to only allow certain high-risk indi­vidu­als behind bars to get vaccin­ated. The decision came nearly two months after several incar­cer­ated people filed a lawsuit demand­ing access to the vaccine. Across the coun­try, many state govern­ments simil­arly resisted calls to vaccin­ate incar­cer­ated indi­vidu­als, and court orders to force univer­sal rollouts are becom­ing more common.

By mid-May, at least some incar­cer­ated indi­vidu­als in all 50 states have been made eligible to receive the vaccine, though most states lack compre­hens­ive plans for vaccin­at­ing people in juven­ile facil­it­ies. And in immig­ra­tion deten­tion facil­it­ies, Immig­ra­tion and Customs Enforce­ment has consist­ently sought to down­play its respons­ib­il­ity to vaccin­ate those in its custody, instead suggest­ing that people should sue the Centers for Disease Control and Preven­tion to get vaccin­ated.

Where incar­cer­ated people can opt into the vaccine, numer­ous issues have emerged. On May 6, staff at a state prison in Wash­ing­ton admin­istered 208 Moderna vaccine doses that were past their “beyond use” dates to incar­cer­ated people. In Iowa, staff at a state penit­en­tiary vaccin­ated at least 77 people incar­cer­ated at the insti­tu­tion with six times the recom­men­ded dose of the Pfizer Covid-19 vaccine.

In contrast to the refusal to prior­it­ize or fail­ure to prop­erly admin­is­ter vaccin­a­tions for incar­cer­ated people, some states have taken neces­sary steps to educate incar­cer­ated indi­vidu­als about the vaccine and to encour­age wide­spread accept­ance. In Cali­for­nia, which is aiming for 80 percent of people incar­cer­ated in its prison system to get vaccin­ated, prison offi­cials have been enga­ging with cred­ible messen­gers in and outside of the carceral system to encour­age vaccin­a­tions among people behind bars. In Illinois, the Depart­ment of Correc­tions desig­nated specific currently incar­cer­ated people to be vaccine ambas­sad­ors, who were given the chance to ask ques­tions of doctors and nurses about the vaccines and then assigned to work as peer educat­ors in their facil­it­ies. These models of provid­ing ample inform­a­tion and oppor­tun­it­ies to receive the vaccine is crit­ical to ending the coronavirus crisis within prison walls.

Other states have also begun incentiv­iz­ing Covid-19 vaccin­a­tions by offer­ing goodie bags or commis­sary credit in exchange for volun­teer­ing to be vaccin­ated. Despite these efforts, getting most incar­cer­ated people protec­ted against the virus is not the final solu­tion to outbreaks in carceral settings, since employ­ees coming in and out of facil­it­ies are very likely to trans­mit the disease unless they are also vaccin­ated. However, prison staff across the coun­try are refus­ing the vaccine en masse, making the quest for herd immunity seem largely impossible. By May, many months into the vaccine rollout, only 55 percent of people in prison had been vaccin­ated — though the number varies greatly state by state.

Finan­cial obstacles in the crim­inal legal system

Recog­niz­ing the finan­cial and public health obstacles presen­ted by the pandemic, some states imple­men­ted posit­ive initial steps toward redu­cing the harms of fines and fees in their court systems. But in many places, emer­gency meas­ures imple­men­ted during the pandemic will not stay in place or have already been reversed.

In the District of Columbia, tick­ets for park­ing infrac­tions were suspen­ded last year but resumed in full on June 1. Simil­arly, at the begin­ning of the pandemic, Iowa Gov. Kim Reyn­olds suspen­ded the delin­quency of court debt not paid within 30 days, but then repealed this proclam­a­tion by July. Other states instead chose to view the pecu­ni­ary chal­lenges brought about by the pandem­ic’s economic down­turn as a chance to further extract wealth from vulner­able communit­ies. In states such as Alabama, courts are inter­cept­ing incar­cer­ated people’s federal stim­u­lus checks to pay off fines and fees. In Color­ado, portions of some people’s pandemic relief checks were inter­cep­ted by the state court system to pay for over­due fees and resti­tu­tion. But in a test­a­ment to the poten­tial for more mean­ing­ful reform, Cali­for­nia enacted a law — which will go into effect in July — that elim­in­ates 23 county-imposed fees while simul­tan­eously forgiv­ing all asso­ci­ated unpaid debts, reliev­ing Cali­for­ni­ans of an estim­ated $16 billion in debt.

Court back­logs

The pandemic halted in-person court proceed­ings across the coun­try, and many people have been stuck in jails because of these delays. In West Virginia, prison offi­cials recently acknow­ledged after a stabbing incid­ent, attrib­uted to frus­tra­tions with over­crowding and exten­ded jail stays, that “while [over­crowding] was an issue before COVID-19, the precau­tions and safe­guards estab­lished in response to the epidemic have greatly restric­ted trans­fers among facil­it­ies and other­wise heightened this chal­lenge.”

Some states have begun reopen­ing courtrooms recently, with vari­ous safety proto­cols in place, which will help ease the number of people wait­ing in jails for their cases to be processed. But the major hurdle facing the coun­try is the huge back­log of cases faced by local, state, and federal courts. In March, Geor­gi­a’s Fulton County, estim­ated that it would take 36 months and $60 million to clear its back­log of approx­im­ately 10,000 cases. A state court in Massachu­setts that reopened in April repor­ted a back­log of over 3,700 cases.

To tackle its back­log, Harris County, Texas recently approved a tempor­ary staff­ing increase for the district attor­ney’s office through July 31. In Wash­ing­ton State, a King County Super­ior Court judge simil­arly proposed a time-limited expan­sion of trial courts by employ­ing retired judges, new public defend­ers, new prosec­utors, and victim advoc­ates.

Unfor­tu­nately, these attempts to protect speedy trial rights and prevent unne­ces­sary court delays have not been widely embraced. Just last month, a federal appeals court ruled that crim­inal defend­ants have neither been robbed of their right to speedy trials nor uncon­sti­tu­tion­ally forced to remain behind bars because of the trial delays instig­ated by the pandemic.

While parts of the crim­inal legal system are attempt­ing to return to some semb­lance of normalcy, much of the exper­i­ence of incar­cer­a­tion remains substan­tially unaltered by the pandemic. And without vaccin­a­tions, decar­cer­a­tion, and a clear strategy to address case back­logs created by the pandemic, the situ­ation is likely to remain dire while those behind bars remain at much-heightened risk.