Jails and Prisons Must Reduce Their Populations Now

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

In late April, a pregnant 30-year-old woman held in a Texas federal prison on drug charges gave birth while on a ventilator and then died from COVID-19. The failure of the criminal legal system to contemplate release of nonviolent and low-risk offenders resulted in a death sentence for Andrea Circle Bear and life without a mother for her child. While she was the first woman to die in federal custody after testing positive for the virus, incarcerated people around the nation are sadly being infected and dying at high rates. As of Monday, 2,144 prisoners at Marion Correctional Institution in Ohio—more than 80 percent of the people held there—have tested positive, and 13 of them have died. Without bolder action, this will be the story in jails and prisons around our nation. 

As jurisdictions across America fight COVID-19, they must turn renewed attention to their jails and prisons. They need to cut their incarcerated population by upward of 30 percent to improve our country’s chances of defeating this virus. Most prisons and jails in the United States operate at 100% capacity. This means multiple people are held in close quarters, with little space between them. Cutting the population down by 30-50 percent would reduce crowding and provide more adequate space for prisoners to practice social distancing. 

There are 2.3 million people incarcerated in the U.S. and nearly half a million prison guards working at the facilities where they are held. Collectively, this population of nearly 3 million Americans would constitute the third largest city in the country, after New York and Los Angeles. They are scattered across our nation without a mayor or governor watching out for them. But ignoring their plight comes at our own peril.

The overcrowding in jails and prisons presents challenges similar to those of other large groups living in close quarters, many in vulnerable health categories, including nursing homes. Studies on the infection rate of COVID-19 for the incarcerated population are limited, but we know that the common flu reproduces at a rate that is three times higher in jails and prisons than in free society. This suggests that the infection rate in our jails and prisons may be as high as 9 percent, meaning that every infected person will likely infect another nine people. 

Reducing jail admissions is critical because 4.8 million Americans are booked into jails each year. This churn of individuals in and out of our jails heightens the risk for all of us. This crisis is showing us that the unequal and brutal conditions of some communities threaten everyone, and we will not succeed in fighting the deadly and devastating impact of COVID-19 by ignoring our most vulnerable.

We have seen in the news the efforts of some communities to reduce their jail and prison populations. At first glance, the raw numbers seem adequate. However, we need large-scale reductions on the order of 30 percent or greater. This requires significant drops in admissions and commitments of pretrial detainees and sentenced individuals.

Justice system leaders need to work proactively to reduce the population by delaying prosecutions, releasing individuals held on bail, settling cases, and using other strategies to reduce jail admissions and length of stays. This can and must be done while prioritizing victim and survivor safety. As we release individuals from custody, it is important to consider conditions that can provide protection for victims and the community. We must notify victims of releases and discuss release conditions, such as protective orders and stay-away orders. Additionally, prosecutors’ offices can assist with victim compensation by providing counseling and other support. Finally, we need to consider the appropriate re-entry services for incarcerated individuals to ensure they are on the most stable foundation possible. The combination of victim compensation support, court orders, conditions of release, and re-entry services can address most of our survivors’ concerns.  

My city’s efforts show that it can be done. On March 4, when the first San Francisco resident tested positive for COVID-19,  San Francisco’s county jails housed 1,103 people, and we booked an average of 50 people per day. Our local health professionals told us that we needed to reduce our jail population to between 700-800 individuals to allow adequate space for social distancing within the county jail system. To do this, police, prosecutors, sheriffs, defense attorneys, and the courts had to step up. Collectively, we reduced the population to 766 people on April 4, with an average daily jail admission of between 20 and 30 people. 

The police deprioritized arrests for low-level offense charges, choosing instead to only arrest when necessary to protect public safety. When they present cases to our office for charging, we are taking a similarly close look to determine which cases must be filed immediately to protect public safety and which can wait. These actions, along with our earnest efforts to simultaneously release pretrial and sentenced individuals, have been the key to significantly reducing our population. 

Embracing the challenge on every available front has brought San Francisco to a previously unimaginable place. In one month, we were able to cut our incarcerated population by 30 percent. Our jail facilities now operate at about 50 percent capacity, providing critical space for incarcerated individuals to social distance. We currently have 720 people in jail for an incarceration rate of 81 per 100,000—close to the lowest, if not the lowest, in the nation. If we include our state prison population, the San Francisco incarceration rate is approximately 179 per 100,000. By comparison, the California incarceration rate in 2016 was 581 per 100,000, and the U.S. incarceration rate was 698 per 100,000. 

Mass incarceration has long threatened our national well-being. Now, coupled with a deadly contagious virus, it is a threat to every individual. After decades of ignoring our ballooning incarceration rates, we created a crisis within a crisis. Conditions we never should have tolerated in the United States are now demanding repair if anyone is to be safe. But the pandemic presents us with an opportunity: If we are smart about how we respond to COVID-19 in the criminal legal system, then we can simultaneously address the public health crisis and the crisis of mass incarceration.

Cristine Soto DeBerry, JD, is chief of staff for San Francisco District Attorney Chesa Boudin.