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The Meaning of ‘Public Safety’ in a Time of Coronavirus

The criminal justice system must respond more quickly to the deadly threat, argues Brennan Center Fellow Andrew Cohen.

March 18, 2020
person in jail
LightFieldStudios/Getty

This is part of the Bren­nan Center’s response to the coronavirus.

The U.S. crim­inal justice system is react­ing — too slowly, still — to the threat the coronavirus poses to the millions of people who are imprisoned or held in pretrial deten­tion around the coun­try and all the people who inter­act with them on a regu­lar basis. More vulner­able now, because of these delays, are prison guards and correc­tions offi­cials, prosec­utors and defense attor­neys, police officers and court staff, judges and jurors, and the health­care work­ers who will be the “first respon­ders” when the virus inev­it­ably arrives in our coun­try’s pris­ons and jails.

In the last few days, some prosec­utors have announced they will no longer pursue low-level cases involving nonvi­ol­ent crimes in the hope of easing crowding in courtrooms and local jails. Other prosec­utors are chan­ging how they will handle bail requests to reduce the number of people locked closely together behind bars. And a coali­tion of 31 elec­ted prosec­utors (and count­ing), some from the coun­try’s largest juris­dic­tions, have openly called for the broader release of incar­cer­ated people from pris­ons and jails. These efforts are welcome and needed and should have been made univer­sal several days ago. 

But there are still federal immig­ra­tion hear­ings under­way where chil­dren in masks, along with their parents, are crammed into tiny rooms. ICE agents, their masks at the ready, are still round­ing up people they say are undoc­u­mented immig­rants. Local offi­cials are still prosec­ut­ing traffic cases in Brook­lyn. In every juris­dic­tion where crim­inal courts are still oper­a­tional to some degree, defense attor­neys who have detained clients face an awful choice. They either have to avoid visit­ing their clients and enga­ging in vital commu­nic­a­tions or they risk either bring­ing coronavirus into the prison or jail with them or taking it out when they leave.

Some local sher­iffs around the coun­try have made the right choice to begin to release people who are serving sentences for nonvi­ol­ent crimes. It’s happen­ing in Cuyahoga County, Ohio, where as many as 300 people are expec­ted to be released. It’s happen­ing in Los Angeles County, where some incar­cer­ated indi­vidu­als already are in quar­ant­ine. And it looks like it is about to happen soon, if it isn’t already happen­ing, in Cook County, Illinois, at the largest jail in the United States. Every local sher­iff in every corner of the coun­try should be look­ing for ways to reduce the number of people in jails and pris­ons — both for the sake of incar­cer­ated people and for every­one who inter­acts with them.

Correc­tions offi­cials around the coun­try last week began to limit or prohibit in-person visit­a­tion and to imple­ment screen­ing proced­ures for the few visit­ors allowed to enter and leave penit­en­tiar­ies. That’s a start. But we know precious little about how those same offi­cials plan to help incar­cer­ated people either avoid the virus or combat it when they fall ill. You’ve no doubt heard by now about New York’s use of prison labor for making hand sanit­izer at absurdly low wages, even though prison rules precluded incar­cer­ated indi­vidu­als them­selves from using it to stay clean. But have you heard about prison offi­cials making sure those same indi­vidu­als have enough soap

Even the smart decisions made by correc­tions offi­cials to restrict the flow of people into pris­ons can have enorm­ously damaging consequences. At the Pinel­las County jail in Flor­ida, for example, 200 people are now sleep­ing on the floor due to over­crowding because they cannot be trans­ferred to state penit­en­tiar­ies. These incar­cer­ated people are unwanted every­where they are — and are at desper­ate risk not only of catch­ing the virus but of becom­ing carri­ers who could trans­fer it beyond the walls of the jail. It is shock­ing that many jail and prison offi­cials fail to see the enorm­ity of that threat. 

The good news is that over the last few days, some local sher­iffs have begun to release from deten­tion people who could not make bail for nonvi­ol­ent offenses. That is precisely what should be happen­ing in every juris­dic­tion if “social distan­cing” is going to succeed in blunt­ing the spread of the virus. But it’s not happen­ing. Consider the case of Sher­iff Jim Arnott, who runs the jail in Spring­field, Missouri. He’s worried about how he’s going to protect both incar­cer­ated people and staff from the virus he hopes won’t be trans­mit­ted into his jail from pris­on­ers who are routinely trans­ferred there. He seems power­less to stop those trans­fers. Yet if those trans­fers stop, there’s the possib­il­ity of a Pinel­las-like prob­lem, right?

The spread of the virus, and the fear of what it will do behind bars, hasn’t unearthed the vast gulf that exists within the crim­inal justice system. It merely has exposed it. The pris­on­ers who are being released today, or defend­ants whose nonvi­ol­ent crimes are being excused, are bene­fit­ting from the wisdom and compas­sion of those who see justice systems as a means toward public safety and health. Mean­while, those who are crowded into danger­ously unhealthy confine­ment today, the inmates who aren’t getting enough soap, are controlled by actors who, tragic­ally for all of us now, see the crim­inal justice system as a means to an end.

Take Adams County, Color­ado, for example. There, a prosec­utor and judge are forging ahead with a death penalty trial even as state and local offi­cials around them are shut­ting down court­houses and justice systems. This is despite the fact that Color­ado legis­lat­ors earlier this year voted to repeal capital punish­ment in the state (a meas­ure that awaits only the governor’s signa­ture to become law). How would you like to be a juror in that capital trial now under­way, locked into a courtroom each day, and then locked into delib­er­a­tions, unable to “shel­ter in place” or prac­tice the sort of “social distan­cing” that public health offi­cials are plead­ing for us all to prac­tice? 

But perhaps the best example of the gulf, and what it means in a time of coronavirus, comes to us from Texas, where correc­tions offi­cials had planned to kill by lethal injec­tion John Hummel, who is on death row. Hummel’s lawyer peti­tioned a state court to stay his execu­tion because of concerns about the coronavirus, arguing that it would be unhealthy and unwise to proceed with a lethal injec­tion this week. But state attor­neys objec­ted and asked to have the right to kill Hummel as sched­uled. Coronavirus or not, they argued, Texas had a legit­im­ate interest in execut­ing Hummel this week. 

To its credit, the Texas Court of Crim­inal Appeals hardly waited for the printer ink to dry before cancel­ling the execu­tion. The fact that the court had to get involved, however, helps explain what seems inex­plic­able to so many. Those attor­neys who pressed to kill Hummel did so to make a point to their constitu­ents about tough justice in Texas. And every day that stub­born judges and prosec­utors and jail­ers try to make that same point — every day they wait to make pris­ons and jails more safe from the virus — is a day in which incar­cer­ated people, and the rest of us, are need­lessly endangered. 

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