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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

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.