John Locke Update / Research Brief

How should correctional institutions deal with COVID-19?

posted on in COVID-19 Series, Law & Regulation, Legal Update
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It’s not just cruise ships.

The danger of a catastrophic COVID-19 outbreak is acute at any institution where large numbers of people live or work in close proximity, and that includes jails and prisons. Last week a group of criminal justice reform researchers and advocates sent letters to Governor Roy Cooper and Commissioner of Prisons Todd Ishee urging them to take steps to minimize the danger in North Carolina’s correctional institutions. The letter to Mr. Ishee included several sensible suggestions that would help keep COVID-19 out of North Carolina’s jails and prisons and minimize its spread if it gets in. Unfortunately, suggestions included in the letter to Gov. Cooper have garnered the most attention, and these are much less sensible.

The letter urges him to:

[M]inimize the inevitable spread of the virus both in our prisons and in our communities … by taking the following steps:

(1) commuting sentences for older and vulnerable citizens with compromised immune systems, anyone who is within 12 months of release from their active sentence, and to anyone currently being held on a technical violation of probation or parole;

(2) expediting mass release of those permanently disabled, geriatric, or terminally ill through the Department of Public Safety’s Home Leave program and Transition Services; and

(3) expediting the review of people eligible for parole, particularly those over 65 years of age.

As I will explain, once all the relevant factors and stakeholders are taken into consideration, I think it is unlikely that the early release of prisoners meeting those criteria will result in a net reduction of risks.  But that’s not my primary objection to the letter to Gov. Cooper. I worry that preparing and implementing early release plans would be a distraction from what should be the real focus of attention, namely, figuring out how to keep COVID-19 out of jails and prisons and how to keep it from spreading if and when it gets in.

Most people who read the early-release proposal reacted by saying something like, “All over the world, governments are trying to get people to self-quarantine, and, in places where conditions are particularly bad, governments are imposing complete lock-downs. Prisoners are one group that is already quarantined and locked down.  Does it make sense to release them now?” While I have the greatest respect for the signatories of the letter to the governor, I am inclined to think these objections are on point.

Let’s start with the prisoners themselves. Even in ordinary times, released prisoners often have difficulty finding work and accommodations, and social services organizations have a hard time helping them. The aged and disabled prisoners released under this proposal will surely find it harder than most, and the COVID-19 outbreak undoubtedly will mean that social services organizations are stretched even thinner than normal. All of which makes it likely that some of the prisoners released under this proposal may end up living on the streets.

That outcome might be acceptable if we were sure that the released prisoners would be less likely to contract COVID-19 on the outside. But will they? As a group, they may be less conscientious about social distancing, hand-washing, and other voluntary control measures than the general population. And even if that were not true, few, if any, will be in a position to work from home and live in isolation on a previously accumulated stock of food and other necessities. On the outside, therefore, their risk of COVID-19 infection is going to be relatively high and quite possibly higher than it would be on the inside.

And what about public safety and the safety of law enforcement officers? As noted above, the proposal recommends the release of the old and the disabled, and it is true that these populations are unlikely to recidivate. However, the proposal also called for releasing those who are “within 12 months of release from their active sentence” and those who are “currently being held on a technical violation of probation or parole.” There is a strong possibility that many members of those groups will commit new crimes after they are released. Of the ones who commit crimes, some will be arrested, convicted, and incarcerated. And of those who are arrested, convicted, and incarcerated, a handful may carry the highly contagious COVID-19 virus into the jails, courtrooms, and prisons.

However, the more important consideration is this: jails and prisons are not like schools and universities. Sending everyone home is not an option. Jails and prisons will continue to operate, they will continue to be filled with prisoners, and correctional staff will continue to come and go. So, measures need to be put in place to keep COVID-19 out as much as possible and to deal with outbreaks when and if it gets in.

As I noted above, the letter that the North Carolina criminal justice reform organizations sent to Commissioner Ishee recommended several measures that address these needs, including the provision of more and better hygiene supplies for prisoners and medical screening and protective gear for staff. More recently, a group of national criminal justice reform organizations, including the Justice Action Network, the National Urban League, Americans for Prosperity, and the American Conservative Union, issued a plan that includes similar recommendations regarding hygiene for inmates, testing for staff, and several additional suggestions as well.

To my mind, the ideal approach (not just in jails and prisons but everywhere) would be to (1) test everyone who has a fever or who is known to have had contact with an infected person; (2) trace and test the recent contacts of each person who tests positive; and (3) isolate all those who test positive for 14 days. The test/trace/isolate approach has succeeded in slowing, and in some instances stopping, the spread of the disease in Taiwan, Hong Kong, Singapore, Macao, and South Korea.

I don’t know whether it will ever be possible to implement the test/trace/isolate approach in the country at large, but I would think it would be possible to implement it in jails and prisons. And I don’t see any other way that mass outbreaks within those institutions can be avoided. Early-release proposals, I fear, are simply a distraction from the pressing need to make this happen.

Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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