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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

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.