Udi Ofer, Former Director, Justice Division, ACLU National Political and Advocacy Department

As COVID-19 spreads across the United States, and as more public and private actors take drastic measures to combat this pandemic, it is vital that police, prosecutors, judges, parole officers, and governors also respond immediately by reducing the footprint of the criminal legal system.
Public health experts recognize the importance of downsizing jails and prisons as part of the COVID-19 response efforts. Millions of people in prisons and jails eat, sleep, shower, and live in close contact with other people, creating perfect breeding grounds for COVID-19.
In response, public health experts have encouraged stakeholders in the criminal legal system to minimize the number of people entering the system in the first place, while also releasing individuals already in prisons and jails who are most vulnerable to the virus.
There are about 10 million admissions each year into our nation’s jails, with 650,000 people incarcerated in jails on any given day. Some are in jail because they are serving a sentence of less than a year, but most are incarcerated in jails while they are awaiting their trial, many because they cannot afford cash bail. They can remain incarcerated for weeks, months, or even years, even though they have not been convicted of a crime. During this time, local jails become incubators for COVID-19 because of their confined space and generally poor sanitation.
One of the best ways to stop the spread of COVID-19 in jails is to decrease the number of people entering the system. This can be done without compromising public safety, while increasing public health.
Police should limit the number of people who are arrested and then detained in jails, even if just for a short time, preventing people from coming in close proximity to other people or in spaces where maintaining hygiene becomes difficult. Police should stop arresting people for low-level offenses, and in many other circumstances can issue citations or desk appearance tickets in lieu of arrest so that people can return home without ever being booked. This will help balance the public safety justifications for arrest with the overwhelming public health concerns presented by coronavirus, and limit the risk of bringing someone who may have the virus into a station and potentially infecting other personnel or first responders.
Prosecutors can also use their immense discretion to limit the number of people who are held in jails or other confined facilities by drastically reducing their requests for pretrial detention and carceral-based sentences. Prosecutors should avoid cash bail requests and move for release in all but the very few cases where pretrial detention is absolutely the least restrictive means necessary to ensure a person’s return to court. With a special focus on populations who the Centers for Disease Control has identified as particularly vulnerable, prosecutors should also institute a review-and-release protocol in cases which bail was already sought and the person is currently detained.
But the public health response cannot end in jails — it must also include our nation’s prisons, where 1.6 million people live. Reducing the number of people who are currently incarcerated will limit the burdens people face due to incarceration or supervision that place them at elevated risk of being affected by the coronavirus pandemic.
Probation and parole agents as well as parole boards must exercise their authority to limit the number of people who are incarcerated or who are forced into public spaces. Agents should cease in-person check-ins to accommodate the need for social distancing, and should allow check-ins to occur by voice or video call. Where those technologies are not accessible to a person under supervision, minimize or temporarily suspend check-in requirements. Additionally, agents should suspend enforcement of any mobility-restricting supervision conditions that impede a person’s ability to seek medical care or to support loved ones who may have COVID-19. Further, limit the number of people being incarcerated by suspending detainers and incarceration for technical (crimeless) rule violations.
Finally, governors have a large role to play in the public health response. They have a uniquely powerful ability to stop the spread of COVID-19 and limit the harm it inflicts on communities by decreasing incarcerated populations and creating a culture in which transparency, safety, and the health of all people are the paramount concerns.
First and foremost, governors should grant commutations to anyone identified by the CDC as particularly vulnerable and whose sentence would end in the next two years. They should also consider commuting all sentences that would end in the next year, and for anyone currently being held on a technical (crimeless) supervision violation.
Importantly, governors should mandate that sheriffs who process these releases coordinate with local service providers and public health experts so that people who may not be able to return home have a safe, accessible place to be that is also close to medical facilities and services. Governors should consider issuing executive orders that seek to achieve these goals, particularly where local system actors are awaiting that guidance.
The good news is that some jurisdictions are beginning to take action. San Francisco and Cuyahoga County in Ohio have begun to safely release people from jail due to concerns about coronavirus spreading through the jails. Moreover, 31 prosecutors representing 17 million people have called for the downsizing of jails and prisons as part of the response to COVID-19, including adopting cite and release policies for police, releasing people who are held because they can’t afford cash bail, and reducing immigration detention.
One of the best ways to minimize the inevitable spread of COVID-19 in jails and prisons is to decrease the amount of people within the system. Now is the time for bold actions by police, prosecutors, sheriffs, parole officers, and governors to protect people during this public health crisis.