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Law360 (May 3, 2020, 8:02 PM EDT) --
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| Oren Gur |
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| Jacob Kaplan |
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| Aaron Littman |
For many jurisdictions and correctional officials, COVID-19 demands a major break with the secrecy of the past. There is an urgent public interest in knowing as much as possible about the effect of the virus inside the prisons and jails. Especially now that visitors and even attorneys are barred from their facilities and formal oversight has become difficult, prisons and jail administrators have a duty to be transparent.[1]
A team of data scientists, criminologists and law professors has begun a concerted effort to gather data to learn more about how incarcerated people and correctional staff are being affected by COVID-19. We have found that some corrections agencies — mostly at the state level — have begun to provide this data, but many others have not.
We are gathering what data is available and call on all state and county officials to begin publicly sharing the detailed data they have in the most accessible form possible. Until they do, it will be impossible to have a national understanding of what is occurring in jails and prisons, and officials with the authority to act will be forced to base decisions with substantial public health and safety implications on intuition and guesswork. Needless to say, this is not how effective public policy is made.
What is known so far about the pandemic's impact behind bars is alarming. COVID-19 has already begun spreading through prisons and jails, sickening and killing prisoners and staff, filling scarce critical care beds, and undermining efforts to flatten the curve in surrounding communities. There is a constant churn of people — prisoners and staff — in and out of facilities,[2] who then return home and infect others. Of the country's 10 top traceable sources of infection, seven are carceral institutions.[3]
Once someone inside is contagious, especially when asymptomatic, a rapid and widespread outbreak is inevitable. Take New York's Rikers Island jail complex.[4] On March 18, the jail had its first confirmed case. A week later, 75 people in custody had tested positive, and the jail had an infection rate 7 times higher than the city. Today, 370 people currently at Rikers — almost 10% of its population — have tested positive for COVID-19.
At the federal Bureau of Prisons' Terminal Island facility in San Pedro, California, over half of people incarcerated there have tested positive.[5] At a state prison in Marion County, Ohio, over 80% of prisoners have tested positive.[6]
More high-quality data is crucial; without this transparency, family members, advocates, epidemiologists and governmental decision-makers are flying blind.
Some state Departments of Corrections, like California's, have recognized the need for transparency, creating dashboards updated daily with detailed information about testing, infection, and death rates among prisoners and staff in each facility.[7] Pennsylvania's COVID-19 site even tracks daily population reductions by facility.[8]
Some systems offer incomplete information. Nevada, for example, displays the number of confirmed positive cases in correctional facilities (currently zero among "residents"), but does not report how many tests have been administered.[9] This lack of a denominator makes it difficult to know whether prisoners there have been spared or simply ignored.
Other jurisdictions report only people who are currently infected and in custody, omitting those who have recovered, died or been released. Still other Departments of Corrections, like New Mexico's, have posted no data at all.[10]
The lack of data is even more glaring at the county level, in America's 3,200 jails. Thanks to an order from the Massachusetts Supreme Judicial Court in a case brought by the local ACLU and public defenders, that state's sheriffs are reporting comprehensive data.[11] The Texas Commission on Jail Standards is reporting data from at least some county jails.[12] But in most cases, the impact of COVID-19 in the jails is anyone's guess. In Arizona's Maricopa County, a family member or journalist trying to find out what is going on in the jail is directed by the sheriff's website to "reach out" to the jail's medical contractor, for which no contact information is provided.[13]
Based on the data we have seen so far, we believe there is only one way to mitigate the risk the virus poses to incarcerated people: We need to reduce prisoner populations to make social distancing possible for those who remain.[14]
Every official with the power to release people from custody — each prosecutor, judge, sheriff, corrections commissioner and governor — needs to exercise that authority. Cases must be dismissed; reprieves, paroles, and compassionate releases granted; home detention and furloughs permitted; and emergency population-reduction powers employed.
The immediate imperative must be to depopulate institutions before people who were not sentenced to death start to die inside. Releases should begin with those at greatest medical need, but cannot stop there.
Beyond releasing people currently in custody, criminal justice actors — who must balance public safety and public health — should exercise their discretion to reduce the daily flow of people into state prisons and local jails.
To be blunt: Most people should not be taken into custody for most crimes, much less sent to jail or prison.[15] Pretrial detention for new arrests should be largely avoided; instead, police should employ their authority to cite and release, or decline enforcement all together with respect to low-level offenses.[16] Courts should release defendants without imposing cash bail.[17] Where diversion programs exist, they should be used. Probation and parole should generally not be revoked, especially for technical violations.[18]
As one police official in Florida recently put it, "It's not that we're not enforcing [the law] ... It's that we're finding alternative ways of dealing with the issue rather than make physical arrests."[19] Even in normal times, taking someone to jail for drug possession or for failing to pay probation fees is counterproductive. Now, it may well be a death sentence — and could cost officers' lives as well.[20]
To appreciate and substantiate the need for these shifts, decision-makers need guidance from epidemiologists, other public health experts and ethicists as to the scale of the danger. And to make these judgments, those experts need data, including who is being held in each facility, how many residents and staff members are already infected, and how many are at high risk and are thus most likely to die from the virus.
This information is a matter of public record and is not protected by privacy law, which only covers individually identifiable health information.
Historically, jail and prison administrators would reveal nothing until forced to do so by the courts. This pandemic demands a different approach. Corrections should disclose, in detail and in real time, the current impact of the virus in their facilities. Stonewalling will cost lives. Data released now might just save them.
The data we are collecting is available at www.covidprisondata.com and @DataPrison, and at www.law.ucla.edu/covidbehindbars.
Oren Gur is a policy adviser to Philadelphia District Attorney Larry Krasner and the director of the District Attorney's Transparency Analytics (DATA) Lab, and has a Ph.D. from the Department of Criminology, Law and Justice at the University of Illinois at Chicago.
Jacob Kaplan is a Ph.D. candidate in the Department of Criminology at the University of Pennsylvania.
Aaron Littman is a clinical teaching fellow and the deputy director of the UCLA Covid-19 Behind Bars Data Project at UCLA School of Law, and has a J.D. from Yale Law School and an M.Phil. from the Institute of Criminology at the University of Cambridge.
Other contributors to this article are: Sebastian Hoyos-Torres, a data analyst in the Philadelphia DATA Lab and a Ph.D. candidate in the John Jay College of Criminal Justice at the City University of New York; Connor Concannon, a Ph.D. candidate in the John Jay College of Criminal Justice at the City University of New York and the former deputy director of analytics in the New York County District Attorney's Office; and Sharon Dolovich, a professor of law and director of the Prison Law and Policy Program and the UCLA Covid-19 Behind Bars Data Project at UCLA School of Law.
"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organizations or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See Coronavirus Tracker: How Justice Systems Are Responding in Each State, Marshall Project (last updated April 28, 2020), https://www.themarshallproject.org/2020/03/17/tracking-prisons-response-to-coronavirus; Keri Blakinger, As COVID-19 Measures Grow, Prison Oversight Falls, Marshall Project (Mar. 17, 2020), https://www.themarshallproject.org/2020/03/17/as-covid-19-measures-grow-prison-oversight-falls.
[2] See John Pfaff, Local Officials Should Quickly Reduce Jail Populations to Slow the Spread of Coronavirus, Data for Progress / Justice Collaborative (Apr. 2020), http://filesforprogress.org/memos/reducing-jail-populations-coronavirus.pdf.
[3] Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (last updated May 3, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.
[4] COVID-19 Infection Tracking in NYC Jails, Legal Aid Society (last updated May 2, 2020), https://legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/.
[5] COVID-19 Coronavirus, Federal Bureau of Prisons (last updated May 3, 2020), https://www.bop.gov/coronavirus/.
[6] Sarah Volpenheim, Marion prison coronavirus outbreak seeping into larger community, Marion Star (Apr. 25, 2020), https://www.marionstar.com/story/news/local/2020/04/25/marion-prison-ohio-coronavirus-outbreak-seeping-into-larger-community/3026133001/.
[7] Population COVID-19 Tracking, California Department of Corrections and Rehabilitation (last updated May 3, 2020), https://www.cdcr.ca.gov/covid19/population-status-tracking/.
[8] Coronavirus and the DOC, Pennsylvania Department of Corrections (last updated May 1, 2020). https://www.cor.pa.gov/Pages/COVID-19.aspx.
[9] Facilities with Reported COVID-19 Cases, Nevada Department of Health and Human Services (last updated May 1, 2020), https://app.powerbigov.us/view?r=eyJrIjoiNDMwMDI0YmQtNmUyYS00ZmFjLWI0MGItZDM0OTY1Y2Y0YzNhIiwidCI6ImU0YTM0MGU2LWI4OWUtNGU2OC04ZWFhLTE1NDRkMjcwMzk4MCJ9.
[10] COVID-19 Updated, New Mexico Corrections Department (last updated May 1, 2020), https://cd.nm.gov/covid-19-updates/.
[11] Tracking COVID-19 in Massachusetts Prisons and Jails, ACLU of Massachusetts, https://data.aclum.org/sjc-12926-tracker/.
[12] TCJS COVID-19 Form A, Texas Commission on Jail Standards (last updated May 3, 2020), https://www.tcjs.state.tx.us/wp-content/uploads/2020/05/TCJS_COVID_Report.pdf.
[13] COVID-19 FAQ, Maricopa County Sheriff's Office (last updated April 9, 2020), https://www.mcso.org/Multimedia/PressRelease/FAQ%20Covid-19-4.9.20.pdf.
[14] See COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failure to Reduce Jails, American Civil Liberties Union (Apr. 2020), https://www.aclu.org/sites/default/files/field_document/aclu_covid19-jail-report_2020-8_1.pdf.
[15] See Alice Speri, NYPD's Aggressive Policing Risks Spreading the Coronavirus, Intercept (April 3, 2020), https://theintercept.com/2020/04/03/nypd-social-distancing-arrests-coronavirus/.
[16] See Citation in Lieu of Arrest, National Conference of State Legislatures (last updated March 18, 2019), https://www.ncsl.org/research/civil-and-criminal-justice/citation-in-lieu-of-arrest.aspx.
[17] See Kira Lerner, California Makes Major Bail Change to Slow the Spread of Coronavirus in Jails, Appeal (Apr. 6, 2020), https://theappeal.org/california-bail-coronavirus-covid-19/.
[18] See Jan Ransom, Jailed on a Minor Parole Violation, He Caught the Virus and Died, N.Y. Times (Apr. 9, 2020), https://www.nytimes.com/2020/04/09/nyregion/rikers-coronavirus-deaths-parolees.html.
[19] See Kenny Jacoby, Mike Stucka & Kristine Phillips, Crime rates plummet amid the coronavirus pandemic, but not everyone is safer in their home, USA Today (Apr. 4, 2020, last updated Apr. 16, 2020), https://www.usatoday.com/story/news/investigations/2020/04/04/coronavirus-crime-rates-drop-and-domestic-violence-spikes/2939120001/.
[20] See Josiah Bates, Police Departments, Sheriffs' Offices Across the U.S. Grapple with COVID-19's Impact on Public Safety–and Their Own, Time (Apr. 2, 2020), https://time.com/5812833/coronavirus-police-departments/.
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