California must reduce jail and prison populations to fight COVID-19 — and racism

A California Court of Appeals recently ordered the San Quentin State Prison to halve its inmate population by transferring or releasing people like the petitioner in the case, Ivan Von Staich — a 64-year-old incarcerated man with respiratory problems who tested positive for COVID-19 after sharing a cell so small that he could touch the walls with his hands.

The court cited the Eighth Amendment prohibition against cruel and unusual punishment in concluding that these conditions were “morally indefensible and constitutionally untenable.”

But there’s not just a legal and moral basis for accelerating efforts to reduce incarceration — an expert panel we co-chaired for the National Academies of Sciences, Engineering and Medicine concluded that there is also a scientific and data-driven case for significantly shrinking jail and prison populations across the board in the midst of a global pandemic.

That’s why merely transferring people from San Quentin to another crowded facility, as many fear, would do little to reduce the risk that COVID-19 poses.

Our panel issued a report concluding that reductions in incarceration (called decarceration), like what the California Court of Appeals ordered, must happen at a much larger scale than what is happening right now across the board. Moreover, in order to ensure decarceration is achieving its full potential, formerly-incarcerated people also need adequate health care and reentry supports when they go home.

Many states and counties know that reducing incarceration is an urgent and necessary public health strategy. Overcrowded, churning, cloistered conditions with inadequate health care make prisons and jails ripe for COVID-19 outbreaks, like the one at San Quentin State Prison, where 27 people have died from complications related to COVID-19, or the one at Marion Correctional Institution in Ohio, where over 80% of the population tested positive.

As the California Court of Appeals pointed out, “infections transmitted through droplets, like COVID-19, are particularly difficult to control in correctional facilities, as adequate physical distancing and decontamination of surfaces is usually impossible.”

While some states and localities have taken steps to reduce incarceration, the overall effect has been negligible. Even though jail populations plunged by 20% between March and June and prison populations decreased 4%, there are nearly five times as many COVID-19 cases per capita among incarcerated people than in the general population. As a result, prisons and jails continue to threaten public health in their surrounding communities.

Worse yet, incarceration is rising again, and rural jails have emerged as a new hub for infection. Rather than falling back on the status quo, when facing a public health catastrophe criminal justice officials and policymakers must take full advantage of all the means of decarceration at their disposal.

Judges can release defendants before trial rather than demand bail. Judges and prosecutors can eliminate incarceration for misdemeanors, parole violations and failure to pay fines. Instead of arrests for minor crimes, police can issue citations. And lawmakers can update compassionate release policies to allow medical vulnerability as a reason for release.

As this shift takes place, public officials need to remember that the effects of incarceration don’t stop at the prison gates. Successful decarceration requires supporting people’s health and safety once they get home, which includes testing everyone before release and conducting “a warm handoff” to community health providers where medical care is needed. Those who are newly-released should be directly quarantined.

The health and safety of the entire community depends on making sure formerly-incarcerated people are meeting their basic needs so they can stay off the streets and get back on their feet. Policymakers must also lift barriers to Medicaid and extend coverage to incarcerated people within 30 days of release.

Federal policy currently forbids Medicaid coverage in prisons and jails. Reversing this policy will significantly improve the continuity of healthcare from incarceration to community, and will only add around 1% to overall Medicaid enrollment. In fact, to protect the health of people in the criminal justice system and their communities, 1990s-era bans on federal benefits for people with criminal records should be eliminated.

Most people who are released from incarceration are returning to a community that has been harmed by both the virus and economic recession, not to mention a history of mass incarceration. COVID-19 has exposed the flaws of a system that focuses its effects on Black, Hispanic and Native American people. Their health vulnerabilities and disproportionate incarceration both stem from long histories of segregation and under-investment that are the very definition of structural racism.

Fighting against COVID-19 in prisons and jails with decarceration and improvements in health care won’t just control outbreaks, it is also fighting racism. Put simply, during a worldwide pandemic of historic proportions, police, prosecutors, judges and parole officers can’t conduct business as usual.

As a matter of law, principle and science, they have to break the habit of incarceration.

This story was originally published November 6, 2020 at 5:00 AM with the headline "California must reduce jail and prison populations to fight COVID-19 — and racism."