Failure to release low-risk prisoners is condemning thousands to COVID-19

• Professor David Mills is a senior lecturer at Stanford Law School, and Emily Galvin-Almanza is a former public defender and the executive director of Partners for Justice.
• They write that unless the US acts now, there’s a high probability that as many as 100,000 people who pass through our jails and prisons will die from COVID-19.
• In Rikers Island, the infection rate is just under 2.8%, which is nearly 10 times higher than the rate in New York State and 18 times higher than the rate in Italy. 
• Mills and Galvin-Almanza say that if leaders fail to act, “They’re sending a clear message that they’re fine letting countless people die, and fueling a greater outbreak across our country.”
• This is an opinion column. The thoughts expressed are those of the authors.
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In just a few short weeks, the COVID-19 pandemic has laid bare the vulnerability we share as a society. We’ve adopted drastic measures in attempts to prevent a tidal wave of sickness and death. Yet as we act quickly to save our own lives, we have shown little urgency toward changing the fate of people living inside America’s prisons and jails. By failing to act, we are essentially deciding that their death is an acceptable outcome, and that their lives are not worth protecting. Unless we act now, there’s a high probability that as many as 100,000 people who pass through our jails and prisons will die from the virus.

By now, almost everyone is aware that the United States has among the highest rates of incarceration in the world. That our jails and prisons are filled with poor people, mostly of color. Many of us also know that our prisons are being used to house people experiencing mental illness. We have not yet come up with a humane response to this reality. 

COVID-19 is now becoming a threat that takes our system’s inhumanity to a new and even more horrific level: We know that the virus spreads in confined groups with frightening speed and efficiency. In a prison environment, huge numbers will die. Essentially, we are transforming their sentence of incarceration into a sentence to death. 

There is a solution, and it’s one that requires a new way of thinking. 

During normal times, decision-makers in the criminal legal system would assume that the surest way to minimize risk to an individual, or their potential risk to the community, is to keep them in a cell. But in the face of COVID-19, we must acknowledge that the risk of death inside prison walls has become higher than the risk of releasing most people.

The process of attempting to divine a person’s “risk” to the community has always been a compelling illusion. Even the most well-developed “risk assessment tools” rely on data culled from a system full of inherent biases, and none have proved able to accurately anticipate future behavior. But while we’ll never truly be able to predict the course of humans with free will, we are able, very concretely, to predict the course of COVID-19 through America’s prisons and jails. 

This frightening new reality has led officials in jurisdictions around the country to begin releasing some people from jail, particularly those held pretrial or on low-level, nonviolent offenses. The officials behind these decisions seem to understand that social distancing is impossible in locked facilities, and that the unhygienic conditions and lack of health care resources put lives at serious risk.

So far, however, the vast majority of people who’ve gotten out are the ones who many would agree should never have been incarcerated in the first place. Their release is a positive step, but it isn’t nearly enough. The numbers are too low: In New York, for example, officials have only released a few hundred people from Rikers Island, where over five thousand people are held in close quarters, forced to eat in groups of four and share one toilet with twenty-eight other people. If the changes remain this small-scale, hundreds of thousands of people could be sickened and die in custody.  With the degree to which jails churn population — almost five million people passing through the US’s roughly 2,800 jails annually — the virus will spread even more rapidly between and among the incarcerated population and staffers, and, therefore, back into the broader community.

To meaningfully reduce population density, protect the most vulnerable, and decrease the spread of COVID-19, we must immediately release a broader group of people: the elderly (whose recidivism rate is remarkably low), people within months of scheduled release, people whose charges are misdemeanors or non-violent felonies, individuals whose health leaves them at particular risk from COVID-19 and whose crime (alleged or otherwise) involves no physical harm to another person, and those held on technical violations of probation or parole.

Advocates, policy experts, and even prison doctors across the country have agreed that it’s safe to release these individuals — and indeed that they must be released to avoid large-scale loss of life. In fact, releasing people from cramped custody into a setting where social distancing is possible (whether at home or in emergency accommodations) protects them and the entire community from the further spread of COVID-19.

But somehow, top officials across the country haven’t recognized the urgency of this issue. Why the hesitation? Do our leaders believe that anyone accused or convicted of a crime, no matter the nature, must still be dangerous? Do they consider the lives of people behind bars so devoid of value that they’d prefer to see them dead than risk any possibility of future crime? Do they not understand that an outbreak in one of these facilities will ripple outward?

If our governors, sheriffs, prosecutors, and president want to save as many lives as possible, they must be willing to reassess the view that sees confinement as the default. 

After all, incarcerated people face a much higher risk of exposure to COVID-19 than they would on the outside — and behind bars, infection is more likely to be a death sentence.

A shift to a presumption of release rather than confinement may seem extreme, but in truth, these calculations have long been out of alignment. The vast majority of crimes — even those categorized as violent or as felonies — do not involve harm to people. Property crimes, drug crimes, violations of probation and parole, and almost all misdemeanors are offenses that by definition do not put lives at risk. If our leaders fail to correct course amid the COVID-19 pandemic, they’re sending a clear message that they’re fine letting countless people die for these offenses — and fueling a greater outbreak across our country — so long as the public is protected from an imagined risk of future crime.

Professor David Mills is professor of the practice of law and senior lecturer at Stanford Law School. Professor Mills is the founder and first director of the Stanford Law School Clinical Program.

Emily Galvin-Almanza has been a public defender in both California and New York, and now works to increase access to justice for low-income communities as executive director of Partners for Justice.