"COVID-19 is highlighting that the system of mass incarceration, in and of itself, is violent ... [+]
The US has become rightfully obsessed with “flattening the curve” to ensure we — as people, and as an economy— can recover as quickly as possible from COVID-19. This means minimizing contact between people, and particularly isolating vulnerable populations like the immuno-compromised and those over 60 years old.
Unfortunately, over 2 million people across the country — including elders, pregnant women and others who are on that vulnerable list — don’t currently have the choice to socially distance because they are in prison or immigrant detention. Thirty-one prosecutors nationally, those you might assume are normally tasked to put people behind bars, are now actually advocating to let more people out to help prevent the spread of COVID-19 in jails and prisons, where an outbreak could spread like wildfire, and then impact the general population as people are ultimately released. The pandemic is therefore not just bad news for inmates, but their continued incarceration is a major public health risk to everyone.
Though no one can predict the exact multiplier effect that the virus spread in jails and prisons will have on society at large, the former chief medical officer at Rikers Island is confident of this: “To the extent that we don’t do a good job in jails and prisons, we will certainly prolong the life of this outbreak.” The prosecutors are therefore proposing immediate actions like releasing people solely held because they can’t pay cash bail, compassionate release, for instance, for those with terminal illnesses, and adopting cite-and-release policies for minor drug offenses to help reduce the jail and prison population in the midst of this pandemic.
While these steps could help stem the crisis and reduce overcrowding in prison, the recent concern around COVID-19 also invites broader questions around the general premise of mass incarceration and immigrant detention: why do we incarcerate a greater percentage of our citizens than any other country, and is it actually making us safer? Are these proposed reforms simply about COVID-19 — or could they help build a stronger criminal justice system for the long-term?
District Attorney Chesa Boudin is tasked with keeping the citizens of San Francisco safe. His philosophy, also embraced in cities like Philadelphia and Boston, is that public safety requires broad attention to public health — whether it’s around COVID-19, mental health, or substance abuse — and a more full-cost accounting of the criminal justice system as a whole. I talked with DA Boudin to learn more about how cities can prevent the spread of COVID-19 in jails, and also think about long-term reforms that can make the criminal justice system more fair and cost-effective for society.
Let's start with the most urgent question. What is the risk of COVID-19 spreading in the nation’s jails and prisons — and how can we protect people from it?
It’s an extremely high risk and a serious one, not only to the people who are in the jails and prisons, but also to the people who work and visit there — whether they be public health officials, sheriff’s deputies, court staff, their families, or the families of those who are incarcerated. We have a real concern that jails could be a major vector for the spread of disease for a number of reasons. One is what we call “churn,” which is the large number of people going in and out of jails and prisons every day, as well as the staff going in and out every day. That includes food delivery staff, guards, counselors, and more. Even if a prison has been shut down, there’s a minimum staff required to maintain that facility.
How can we protect people from it? Well, unless we reduce the prison population, we simply can’t. All it takes is a single person coming into or going out of the jail or prison with COVID-19, and the entire jail will likely be infected. Most jails have people living in very close quarters. Incarcerated people are brought into jails on buses that are completely full, where people are virtually on top of each other. As of March 18, 32 of the 35 California prisons are overcapacity — several over 150% capacity.
Rikers Island jail in New York provides an ominous look at what will happen if we do not take aggressive measures to flatten the curve. As of yesterday, 21 incarcerated people and 17 employees have tested positive for COVID-19. To put that into context, San Francisco has recorded 108 cases in the entire city. We just learned yesterday that one of those cases is a sheriff’s deputy who works in one of our county jails.
What’s the usual square footage of a cell? Is it possible to practice the required social distancing of six feet?
It’s not possible in most jail setups. It varies dramatically from one jail or prison to another. My father, David Gilbert, is in prison in New York. He is lucky that he has a single cell, not shared with another person. His cell is about eight feet by eight feet. That means some degree of isolation is possible, but his cell is also open through steel gates, which presents a risk of exposure to people moving through the cell block nearby. He’d literally have to occupy only two feet of his cell to follow the CDC guidelines.
Even if a cell allows for some social distancing, daily prison activities, like eating and exercising, require social contact. People in San Francisco County Jail are all double bunked or even housed in dorms. People in jail cells and prison cells across the country are in dorm rooms with row after row of double beds, with way less than six feet separating them.
If the spread of COVID-19 is virtually inevitable within a jail, and there are people moving into jails then back out to the general public every day, how can we prevent this? What is your office currently doing to fight COVID-19, that other jurisdictions could replicate?
There are a large number of things that we can do to protect the public. The primary one is that we can move to quickly and safely reduce the jail population so that jails are only holding people who are presenting an active threat of violence to the community. That allows us to minimize the risk of spreading COVID-19 and keep families of those who work and live in the jail safe. And it allows us to focus limited criminal justice resources on those that present the biggest danger to public safety.
There’s a lot that we’ve been doing in San Francisco, including: supporting an increase in cite-and-release rather than physically putting people in jail; compassionate medical release for the old and vulnerable; early release for those with just a few weeks left to serve in a jail sentence; releasing people too poor to pay low bail; declining to detain people for technical parole and probation violations; and expediting community placement for people who have been conserved. We’re happy to have that happening here and other places in the context of this crisis, but it does raise the question of — why didn’t we do this sooner?
We need to consider whether we can safely continue the national system of mass incarceration. Why do we need to take people to jail for non-violent offenses if what they really need is drug treatment or mental health services? Before this pandemic, 65% of people taken to San Francisco jail were there for less than a week. That shows there’s already a recognition that we’re not taking people to jail because they’re dangerous or they can’t be released. And of course that rapid churn of people in and out of jail is a huge factor in increasing the risk of COVID-19 spread not just in the jail itself, but to everyone on the outside as people are released.
You raised a great point. Why does most of the country operate by taking people to jail for non-violent offenses, the majority of whom for less than a week?
It’s something we’ve done without empirical inquiry or analysis. We’ve been addicted to incarceration as a primary response for decades, whether or not it’s a good use of resources, whether or not it’s humane, whether or not it is effective at keeping us safe, rehabilitating or healing victims.
Now that we’re advancing alternatives, people are asking if we can prove these are good responses. The answer is, yes, we can. We’re keeping data internally and have nearly a dozen partnerships with organizations, non-profits, educational institutions like Stanford and Berkeley and beyond that help us track data about the effectiveness of alternatives.
But no one has ever held our system of mass incarceration to the same standard. No one is asking, “Does it make people less likely to sell drugs or use drugs or to reoffend if we put them in jail? Does a few extra weeks of incarceration make it more likely they will kick the habit?” “Does it help victims if we put people in jail?” No one has tested our system of mass incarceration against rigorous inquiries. And we know that the answer is no, it does not. Our current system does not support victims. It does not rehabilitate. The marginal benefit of that extra day or week or year of incarceration is basically non-existent. Yet we continue to blindly impose harsher and harsher sentences without any link to public safety benefits.
Your office is focused on releasing those deemed not to be a threat to public health and safety. For instance, on the national level, it’s been estimated that 76% of people in jail haven’t actually been convicted of a crime at all. I’m curious how you segment those who potentially pose a danger to the community and need greater, rehabilitative support, from those who don’t.
For pretrial incarceration, we’re looking primarily at cases where the person is currently charged with a serious or violent offense: armed robbery, sexual assault, attempted murder. There’s a list under California law that defines serious and violent crimes. That is a starting point for us. If a person is not charged with one of those offenses, we have a presumption that they don’t need to be incarcerated right now. Because with COVID-19 what might have been intended to be a short sentence could become fatal.
The majority of people in San Francisco jail are in on a serious or violent offense, at a rate that is actually higher than most of the country. This is because San Francisco is one of the jurisdictions that has the lowest rates of overall incarceration. We’ve made tremendous strides, both in the two and a half months that I’ve been in office, and prior, at reducing the jail and prison populations. That’s a good thing, but it means we have less flexibility in reducing the jail population during this crisis. San Francisco jails are not filled with primarily drug and property crime cases, as many other jails are.
We’re dividing the jail population into a few categories and being systematic. One is people who have already been sentenced and are close to release anyway. Since they’re scheduled to be released, we’re trying to move up their release dates. Technically, they would still owe those days, but they don’t need to be served right now. That’s called a “stay” of sentence. We’re also looking at a separate population — people who are elderly or medically at risk, and thus are high risk for fatalities from COVID-19.
I hear you that if we can’t keep prisons and jails safe, someone who might be sentenced to a minor punishment, may actually receive the worst of all sentences without a trial — a death sentence. Do you see the government having a moral or legal liability if someone dies because of COVID-19 while in jail or prison?
I think there could be legal liability, and there’s definitely a moral obligation to get folks out who we safely can.
In January, San Francisco settled a lawsuit with inmates who sued because they were exposed on a regular basis to sewage spills in their cells. We know that counties can be and often are sued because of unsafe living conditions in jails and prisons. We need to move aggressively to limit liability and save lives.
They say never let a good crisis go to waste. What do you see failing in the criminal justice system nationally, and what have you tried in San Francisco that is different?
We see lots of failings in the criminal justice system, not specific to COVID-19, but that COVID-19 helps highlight. One of the failings is that we’re using jails and prisons as a primary response to so much behavior that is non-violent and driven by behavioral health issues.
COVID-19 is highlighting that the system of mass incarceration, in and of itself, is violent because it exposes people to disease and other forms of violence, like sexual assault. It’s forcing courts, sheriffs, and District Attorney offices across the country to take a long, hard look in the mirror and identify what our core function is. How can we contribute to public safety, and how do we actually undermine it?
We should not have people in prisons and jails who aren’t a violent threat. We should not expose sheriff’s deputies and guards and court staff to contagious diseases as part of their work. Those changes are long overdue and need to be implemented both now and after this crisis passes.
There’s also deep concern that police — who are already expected to act as mental health and drug counselors — are now also being expected to take on critical public health tasks. How would such reforms not just keep inmates safer, but also support police officers?
Police are being asked to perform critical duties well beyond the scope of their training. Recently, the SF Police Commission passed a resolution urging the Mayor and Board of Supervisors to put health professionals on the front lines of health crises, not police officers. When police officers are on the front lines of responding to this crisis, it’s distracting them from their core responsibility of responding to crime — and it’s posing a risk to their health. It’s leading to higher incidence of violence, too.
Nearly every stakeholder is in alignment. We should be responding to public health crises with health professionals. It’s critical and common sense that we establish a non-police response to these incidents. It’s safer, more effective, and more humane for everyone involved. It’s an issue that I’m prioritizing in my relationships with funding bodies and local authorities. We need people who have the training and resources to respond to mental health crises safely and to do so in a way that doesn’t distract the police from their primary responsibilities.
Because police aren’t trained for this type of response — are they able to practice social distancing when responding to calls?
They are not. We see police responding to overdoses, going to homeless camps, responding to mental health calls. It’s exposing police officers to health risks that they need not be exposed to. We’d be far better off if we had a pre-existing network of public health first responders. That would free up police from being that first line of response to so many public health emergency calls and to ensure those responding were trained and well protected for the response.
There are well tested models like CAHOOTS in Eugene, Oregon, which provides mobile crisis intervention with health professionals and is dispatched through the police-fire-ambulance communications center.
There’s a serious risk that because of the nature of the job that police do and our failure to have a public health first responder team, we will find that cities in the coming months don’t have available police departments to respond to crime. The risk that our police departments could be crippled by COVID-19 infections is of enormous concern.
Are there financial savings to be had from implementing criminal justice reforms like alternatives to incarceration?
There are definitely financial savings that come from alternatives to incarceration overall. Alternatives to incarceration are cheaper and more effective. But it’s complicated because of the separation between the local system and the state or federal system and the way the incentives are structured. If, for example, we send someone we prosecute to state prison for life, the cost is almost entirely borne by the state of California, which is external to our local jurisdiction and budget.
So it’s cheaper for us as a jurisdiction to send someone to a state prison for life, which costs millions of dollars, than it is to engage in an alternative to incarceration — whether that’s restorative justice or Veteran’s Justice Court, even if that program lasts less than 6 months and is thus significantly cheaper. We are missing out on major opportunities to save the state money. Local communities need to break the cycle of recidivism, but states also need to help with incentives to do that and think more about the full-cost accounting that local communities and states can do together.
Are there concrete actions that governors and legislators could take in California to create some of these incentives?
We don’t have any specific legislation in process now that I’m aware of, but it’s something that we’re in active conversations about. We’d like to see those sorts of changes made. Not only to incentivize alternatives to incarceration, and a non-police response to health crises, but also to invest more resources in victims' services. We’d love to see some of the money that San Francisco is saving the State of California, and have that money available for alternatives to incarceration and for victim services.
Earlier this year you ended cash bail in the city of San Francisco — one of the first cities in the country to do so alongside Washington DC and New York. Do you still see eliminating cash bail as a priority for cities at this moment? Are there other immediate economic reforms that local governments should be championing — to not just thoughtfully reduce prison populations now, but into the future?
Absolutely. We need to move away from a wealth-based system and replace it with a risk-based system. We don’t want people in jail because they’re poor. Jails should be for people who pose a risk to society that can’t be mitigated through other means.
Expanding mental health treatment and drug treatment are other examples. In San Francisco 75% of people booked into county jail are mentally ill, drug addicted or both. Those problems are often exacerbated in jail. It’s far more cost-effective and effective, period, to provide treatment for those people, even if that treatment is part of a response to a crime than it is to put people in jail, not treat them, and return them to society, knowing that they are likely to reoffend.
Lastly, what can an ordinary citizen do in response to some of the conditions in prisons and jails and the risk they pose both to those who are incarcerated, to all those who work with or are in close contact with those who are incarcerated, and to all our overall public health?
The most time-sensitive and critical action is to reduce the jail population and move away from taking people into jail for every minor offense. Citizens need to be loud and clear with their local and state representatives to close down jail beds, to institute social distancing within prisons and jails, and to ensure that we decrease the churn in and out of the prisons, which pose the biggest risk to us all.
Long term, these reforms are ultimately contingent on reducing the factors that often lead to criminal behavior across the board. It means supporting politicians and organizations that advocate for healthcare, housing, and education as a human right.
Thanks to Jasmine Rashid and Teju Ravilochan for their contributions to this piece. Full disclosures related to my work here. This post does not constitute investment, tax, or legal advice, and the author is not responsible for any actions taken based on the information provided herein.
