COVID-19, Mass Incarceration, and their Effect on the Prison Population
Carson Jones is an Associate Editor for the Michigan State International Law Review.
When the COVID-19 Pandemic began to spread across the United States in the spring of 2020 and states began to implement health and safety restrictions, one simple instruction was repeatedly advised for the American people to practice: social distancing. Social distancing is a relatively easy concept to follow, as it simply urges that people remain a minimum distance of six feet away from each other. Doing so helps prevent the spread of respiratory diseases such as COVID-19. Restaurants that were allowed to remain open spaced out tables and asked take-out customers to socially distance while waiting in line; retail stores marked aisles and cashier lanes to assist in maintaining the six-foot distance requirements; and governments requested distancing while walking on a sidewalk to avoid coming into contact with others. While businesses and everyday citizens began to adapt to the new normal, prisons were unable to adjust to social distancing, leading to a spike in COVID-19 cases.
Prisons were not built to be able to accommodate social distancing guidelines. After the financial crisis of 2008, states began closing prisons to reduce their strain on the budget, which increased the number of inmates that would need to be placed into a single prison building. Modern prisons were designed to function like a dorm rather than individual holding cells because it reduced the costs associated with housing the inmates. When the prisons were built thirty years ago, the prison architects were not concerned with the spacing of inmates and did not even consider that it might be necessary to “design facilities for large numbers of people suffering a new and mysterious disease.” Packing inmates close together was a recipe for disaster when COVID-19 struck as it resulted in the prisons having an infection rate “three times higher in the prison population compared to that of the general public, while the mortality rate has been double.” 
The closely packed inmates transmitted the virus at a faster rate because the prison system was already overwhelmed with inmates due to previous policies instituted by the United States government in the “war on drugs” era. During the 1970s, the United States government implemented several policies that would end up causing overcrowding in prisons, such as mandatory minimums and restrictions on parole release. Requiring a mandatory prison sentence for certain crimes removed discretion from judges, which lead to harsher sentences and more people in prisons than there would normally be. Since then, policies have begun to shift away from mass incarceration and towards preventing offenders from reoffending, such as increased use of probation or drug treatment programs. These new programs, however, cannot reduce the sentences of those who have already been convicted, leading to an increase in the number of people in prisons. With more and more bodies inside prison cells, prisons began to exceed their capacities, preventing them from eventually utilizing social distancing when the COVID-19 outbreak began.
The lack of ability to social distance from the beginning of the pandemic hampered the ability of the government to stop the spread of the virus, but there were also missteps made by corrections officials which further exacerbated the spread. In some Michigan prisons, inmates were shuffled from one unit to another as prison officials attempted to ascertain who was infected and how big the spread of the infection was. This lead to an increase in infections due to prisoners who might have been exposed, but who may not have been infected with the virus, being essentially forced to quarantine with prisoners who were infected with COVID-19. Further, some of these temporary holding locations were not properly sanitized between changes of inmates, leading to a greater likelihood of infection.
It may be tempting for some people not to care about whether prisoners are infected with COVID-19, as there are those who believe that inmates are not as valuable as other humans because they are “criminals” who should have to live with the consequences of their decisions. But even this cynical response does not consider the consequences of inmate COVID-19 infections; specifically, it leaves out the possibility that inmate infections can spread into the larger community surrounding the prison. Even if the privilege of having visitors is suspended, a potential COVID-19 infection could spread to visiting defense attorneys, the correctional staff, or the medical staff. This problem is especially pronounced in jails, which receive a lot more turnover in and out of the jail facility, allowing inmates to become infected while they waited for a pre-trial hearing to determine whether they can be released. This leads to the community that the inmates are being released into becoming infected at a greater rate, as there is now a greater chance of members of the community coming into contact with someone who has been exposed to the virus at a jail facility. So while it is tempting for those who do not care about the lives of prisoners to be indifferent to their health and safety, it can still come back to harm the community at large.
The immediate response to the large infection rates and potential for further spread of the infections in prisons was to release some nonviolent offenders out of the prisons on parole. This has been an effective solution, but it is not being implemented widely enough to increase its maximum effectiveness. Reducing the number of inmates inside jails makes it easier for inmates to socially distance themselves, but it is often held up by the bureaucratic process of seeing who qualifies for either early release or home confinement, as well as taking into consideration the effect on the victims of the offenders who have to contend with knowing that the person who harmed them will now be free. This has led to the belief that there could be a fundamental change in the correction system in America because it shows that it is not necessary to order people into prisons for them to be punished for their crimes. In addition, it shows that there are alternatives to locking those who have committed crimes in a confined cell.
The primary policy change that could be made to reduce infections in prisons is to not sentence non-violent offenders to imprisonment, but rather to place them on probation or in a more specialized program, such as drug treatment for those who are arrested for drug crimes. Prosecutors could utilize their discretion over sentencing to prevent unnecessary incarceration. However, it is also necessary to provide more open spaces for inmates to allow for social distancing in prisons, as well as providing more comprehensive response plans to prison management in order to prevent incidental infection. Furthermore, prisoners can take legal action over the lack of response by prison officials, as some inmates have already done. Due Process claims as well as Eighth Amendment cruel and unusual punishment claims seek to allow the release of inmates that may deserve early release for reasons like pre-existing health issues but were nonetheless denied. The success of these claims will be hard to predict as the COVID-19 pandemic has created several novel legal issues.
Ultimately, prisons were not designed to allow for sufficient space for inmates to socially distance from each other in the event that they were required to, and the COVID-19 pandemic showed exactly how deadly that could be. Solving the United States’ mass incarceration problem could be the key to saving the lives of those who are currently residing or working in prisons and jails across the country and doing so will help protect the entire community.
 Nina Bai, Why Experts Are Urging Social Distancing to Combat Coronavirus Outbreak, U. Cal. San Francisco (Mar. 14, 2020), https://www.ucsf.edu/news/2020/03/416906/why-experts-are-urging-social-distancing-combat-coronavirus-outbreak.
 Dara Lind, The Prison Was Built to Hold 1,500 Inmates. It Had Over 2,000 Coronavirus Cases., ProPublica (June 18, 2020), https://www.propublica.org/article/the-prison-was-built-to-hold-1500-inmates-it-had-over-2000-coronavirus-cases.
 Madeleine Carlisle & Josiah Bates, With Over 275,000 Infections and 1,700 Deaths, COVID-19 Has Devastated the U.S. Prison and Jail Population, TIME (Dec. 28, 2020), https://time.com/5924211/coronavirus-outbreaks-prisons-jails-vaccines/.
 What Is the Impact of Overcrowding on Sentencing Guidelines?, 303 Legal, https://303.legal/what-is-the-impact-of-overcrowding-on-sentencing-guidelines/ (last visited Feb. 19, 2021).
 Marc Mauer, Long-Term Sentences: Time to Reconsider the Scale of Punishment, Sent’g Project (Nov. 5, 2018), https://www.sentencingproject.org/publications/long-term-sentences-time-reconsider-scale-punishment/.
 Lind, supra note 2.
 Aaron Miguel Cantú, Prisoners Describe Official Missteps at the Center of Michigan’s Worst Coronavirus Outbreak, Intercept (Sept. 28, 2020), https://theintercept.com/2020/09/28/covid-prison-outbreak-michigan-coronavirus/.
 See Madison Pauly, The Freakout About Giving COVID Vaccines to Prisoners Has Already Begun, Mother Jones (Dec. 4, 2020), https://www.motherjones.com/crime-justice/2020/12/prison-vaccine-covid-priority-colorado/.
 See Michael Ollove, How COVID-19 in Jails and Prisons Threatens Nearby Communities, PEW (July 1, 2020), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/07/01/how-covid-19-in-jails-and-prisons-threatens-nearby-communities.
 Heather Grey, How COVID-19 Outbreaks in Prisons Are Making the Pandemic Worse for Everyone, Healthline (July 25, 2020), https://www.healthline.com/health-news/how-covid-19-outbreaks-in-prisons-are-making-the-pandemic-worse-for-everyone.
 See id.
 Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Nov. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html.
 See John Eligon, ‘It’s a Slap in the Face’: Victims Are Angered as Jails Free Inmates, N.Y. Times (Apr. 24, 2020), https://www.nytimes.com/2020/04/24/us/coronavirus-jail-inmates-released.html.
 Linda So et al., America’s inmate population fell by 170,000 amid COVID. Some see a chance to undo mass incarceration, Reuters (Oct. 28, 2020), https://www.reuters.com/investigates/special-report/usa-jails-release/.
 Burton Bentley, The Growing Litigation Battle Over COVID-19 in the Nation’s Prisons and Jails, Law.com (Aug. 25, 2020), https://www.law.com/2020/08/25/the-growing-litigation-battle-over-covid-19-in-the-nations-prisons-and-jails/.
 See Litigation and the Covid-19 Pandemic, Bloomberg L. (Apr. 21, 2020), https://pro.bloomberglaw.com/brief/litigation-and-the-covid-19-pandemic/.
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