The U.S. Criminal Justice System in the Pandemic Era and Beyond: Taking Stock of Efforts to Maintain Safety and Justice Through the COVID-19 Pandemic and Prepare for Future Challenges
Apr 8, 2021
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This brief highlights the challenges the COVID-19 pandemic created, shows how corrections agencies adapted to those challenges, describes which adaptations may hold promise to continue even after the pandemic ebbs, and provides suggestions for evaluations to demonstrate the efficacy of such adaptations.
As the coronavirus disease 2019 (COVID-19) pandemic began to unfold in spring 2020, one of the earliest populations to be affected was the staff and inmates of correctional facilities and those in surrounding communities. This is unsurprising, given that COVID-19 is highly contagious. Incarceration is an inherently physical space–based practice, and standard prison practices that involve close contact and interaction among residents and staff create a high-risk environment. Unlike other parts of the criminal justice system, correctional facilities have much more difficulty implementing social distancing or transferring operations into the virtual realm to reduce such risk. In addition, staff enter and leave these facilities on a daily basis, which can increase transmission from the community to the incarcerated population and vice versa.
Although the challenges have been significant, pandemic response in correctional facilities—and importantly, efforts by other parts of the criminal justice system to reduce the number of incarcerated individuals to reduce infection risk—may provide some insight into paths toward reforms that could reduce the level of incarceration in the United States. Taken as a natural experiment in reducing the numbers of inmates in jails and prison, the COVID-19 response can be instructive in driving future reform.
To better understand how the COVID-19 pandemic has affected the criminal justice system in terms of the challenges the pandemic created and how agencies adapted to those challenges, the Priority Criminal Justice Needs Initiative conducted a series of panel workshops with representatives of different sectors within the system. One of the key goals of the discussions was to identify which adaptations presented promising practices that agencies should consider continuing beyond the COVID-19 pandemic.
One such panel workshop brought together administrators of both jail and prison systems, correctional health care providers and other experts to discuss how the pandemic has affected these facilities and their systems' respective responses. In addition, a separate community workshop provided input on the broader effects of changes made by institutional corrections agencies and the justice system more generally.
Incarceration is, by definition, an enclosed environment. Notwithstanding variations for different security requirements, inmates are generally confined to buildings for the majority of the day, and facilities have limited opportunity to move activities outside to reduce COVID-19 transmission risk. In addition, many buildings lack ventilation systems that would help control the transmission of an airborne virus.
Compounding the problem, the population density inside some correctional facilities is very high. In the United States, the rate of incarceration means that many facilities operate at or above their designed capacity, and even their designed capacity puts many individuals in such arrangements as multi-person cells or dormitories, creating significant risk for disease transmission. Spread of the virus in carceral situations was found to be more than twice as fast as in the nation overall. At the same time, efforts to reduce inmate populations raised concerns about whether a released individual could unknowingly introduce COVID-19 into the community. Similarly, there were concerns that an inmate might be released into an environment in which COVID-19 was present. Pre-release quarantining to address some of these concerns has put even more stress on facilities' limited space.
Early on, we kept hearing talk about, "you need to socially distance your inmates." Well, I was always asking, how do you socially distance people in a fixed concrete footprint?
Institutional corrections panelist
As in the rest of the country early in the pandemic, shortages in testing and the difficulty of managing large-scale testing programs made it difficult to both keep the virus out of correctional facilities and manage outbreaks when they occurred. A June 2020 cross-state examination by Emily Widra and Dylan Hayre at the Prison Policy Institute showed that relatively few states were doing comprehensive testing across population and staff. Although more-widespread testing of populations has become more common as testing capacity has increased, panelists described the efforts as extremely labor-intensive. Others have had to adopt less-broad testing strategies for cost and management reasons. Some panelists noted that they have had to collaborate with local partners that had the laboratory facilities and staff to test samples collected from the incarcerated population.
Using test data effectively also has been a challenge. Although larger agencies might have internal research capabilities, many others have needed guidance on how to use test results to support individual and population-level decisionmaking.
Even before the pandemic, mortality levels in correctional facilities raised concerns about the effectiveness of health care delivery to incarcerated populations. The COVID-19 pandemic has stressed those systems even more. In most facilities with limited health care delivery capacity, inmates receive more-intensive care at outside hospital facilities. However, external hospitals have been stressed by COVID-19 cases coming from the community. For correctional facilities with well-resourced clinics that are served by health care contractors, it could be difficult for those contractors to access protective equipment and other supplies with the same priority as the corrections system itself, even though they are the people delivering services within the facility.
A further challenge in managing the COVID-19 pandemic has been the high risk that many inmates face. A significant percentage of correctional populations fall into high-risk groups for more-serious consequences from infection: elderly individuals; people with preexisting health conditions; and members of minority groups, who have higher average fatality rates from COVID-19. For inmates who suffer from mental health and behavioral disorders, facilities have faced some challenges in ensuring continued access to effective treatment for those disorders. Such conditions also posed a challenge for controlling the spread of the disease because they also could affect inmates' compliance with infection-control procedures.
We know that about 1,200 people have died so far in terms of incarcerated people and staff, the largest clusters of COVID continue to be jails and prisons, and we're continuing to struggle to find ways to kind of get a better response from the system.
Community organization panelist
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As noted earlier, institutional staff often work near or directly with inmates, putting those staff members at risk of infection. Both the number of correctional staff who have contracted the disease and the even higher numbers of staff who have had to quarantine as a result of exposure concerns have had consequences for the morale and mental health of correctional staff and for the continued functioning of corrections institutions, which require sufficient numbers of people to maintain security and meet the needs of residents. Correctional staff, like other public safety practitioners, experience job-related stress at rates that are higher than those of the general population, and stress related to COVID-19 has exacerbated the situation.
Our professional leaders [are] going through the fact that they've lost staff and residents to COVID-19.… I worry about the impact to them, their own mental health, their own emotional health.
Institutional corrections panelist
Institutional corrections agencies face funding pressures as a result of the effects of the pandemic on municipal and state budgets. Operating and staffing correctional facilities is costly, and there were concerns that budget constraints would force a return to pre-pandemic high-density facilities to house more people at less cost. Because reduced inmate density has been critical for infection-control strategies, a return to high-density facilities would increase risk in future disease outbreaks—but it would also sacrifice the opportunity for the system to take advantage of reduced prison populations to improve performance and implement reforms going forward.
In most cases, our correctional leaders don't have control over the front door, … that's a court system. And the back door, in most cases, that's a parole system with their own sets of decisionmakers.
Institutional corrections panelist
While efforts were being made to cut flows of people into the justice system, jails and prisons took steps to reduce populations and made other significant changes designed to protect both incarcerated populations and the staff involved in the corrections system from COVID-19. Past concern about pandemic influenza and other diseases had prompted some preparedness efforts, but the extent of preparedness varied from system to system, and so too did COVID-19 responses. The following are some key adaptations identified by workshop participants that were implemented by institutional corrections agencies across the United States in response to COVID-19:
We mandated mask wearing for everybody in the jail … and believe it or not, it went over pretty well. I probably had a harder time getting our officers to wear them than the inmates, and you might think it would go the other way, but I think the inmates kind of realized what was going on.
Law enforcement management panelist
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With less flexibility than other components of the criminal justice system, the correctional sector has had to be creative in its COVID-19 response. Looking across the changes that have been made, there were several that workshop participants highlighted as valuable to consider carrying beyond the pandemic:
The reduced population really helped us get creative. Now I have some space in the housing units.… We've been able to create what we call a pretrial diversion unit. So we have social workers in there working with our staff to get these guys working with the courts and probation and the judges to get them out of here, back into the community for services there. And we also have one that I'm very proud of [, which] is a mental health unit, where we have a lot of folks with … tougher cases of mental illness but who can survive in a more social setting instead of just a lone cell or a two-man cell. That's worked out very well.
Law enforcement management panelist
The panel discussions surfaced several questions whose answers could inform post-pandemic decisionmaking. Research efforts that are focused on these questions could provide a broader understanding of the effects of substantially adopting virtual technologies in particular and inform decisions for institutional corrections technology and policy going forward. The following are some examples of research and evaluation questions proposed by the participants: