COVID-19 has exposed the interlocking risks of mass incarceration

The rapid spread of COVID-19 among the nation’s prison populations presents us with three interlocking, and to some degree, conflicting risks: Prison health, public health and public safety. Reducing prison population density is urgently needed to address the first two challenges while the third might be aggravated by prematurely releasing individuals who pose a risk to the community. Fortunately, we have assessment tools that, if properly used, could substantially mitigate safety concerns while protecting the lives of inmates and correctional staff and limiting the impact on already strained health systems.

First, the problem. The United States has more than 2 million people behind bars, the highest both in raw numbers and per capita in the world. This pattern of mass incarceration imposes enormous costs on federal and state governments that must house, feed and supervise the inmates. In a number of states, prisoners live in such cramped quarters that the federal and state courts have determined the conditions amount to a violation of 8^th Amendment protections against “cruel and unusual punishment.” This overcrowding also creates ideal conditions for rapid spread of the highly contagious and potentially lethal COVID-19 virus especially among prisoners but also in the broader community.

The recent COVID outbreak at the state correctional facility in Marion, Ohio, illustrates the point: In a prison population of 2500, 80 percent have tested positive for COVID-19. In addition, 160 corrections officers and other staff have also tested positive, leading to concern that these workers might spread infection to family members and others in the community. Low-density Marion County now has more cases than urban centers like Columbus or Cleveland. 

To deal with the prison-coronavirus challenge, several governors are experimenting with “de-carceration,” which typically involves moving up the release for those nearing the ends of their sentences. The number of releases has been modest thus far, but the backlash has been intense in some places. In some jurisdictions, judges, prosecutors and governors have faced intense push-back from victims’ rights advocates and others objecting to the release of convicted criminals who may pose a threat to public safety. 

Unfortunately, these confrontations may be yielding more heat than light about potential solutions to these urgent and often conflicting demands. Amid this furor, we are proposing a different path that seeks to weigh, as objectively as possible, the safety risks of early releases against risks to health in prison and in the community. 

Over the past few years, a number of state criminal justice systems, including Minnesota’s, have begun using automated, computer algorithm-based risk-need-responsivity (RNR) assessments to help better prepare inmates for release. More accurate than professional judgment and much easier for prison staff to use, these assessments  help generate service packages (e.g., substance abuse treatment, job training, mental health services) that mitigate the factors most likely to result in new crimes and convictions. The use of these assessments also promotes public safety by guiding decisions about the appropriate level of community supervision (e.g., probation, parole, half-way houses).

In the context of the pandemic, we believe RNR assessments could be coupled with medical risk assessments to identify individuals who are both “low-risk” for future offense and “high-risk” for COVID-19 due to underlying health conditions (e.g., age, obesity, high blood pressure, diabetes, lung disease). These assessments would offer some assurance to corrections officials, governors and the public that there is sound health justification for release and provide a higher level of confidence that those being released are suitable for community supervision.

States might also consider greater reliance on automated risk assessments for pre-trial risk assessments to determine whether an individual accused of a crime requires detention in a jail facility or can be safely monitored in the community pending trial, thus reducing the numbers of people flowing into jails and prisons. Where these individuals end up residing outside the corrections system is critical, especially as it relates to those who have been accused or convicted of domestic violence or sex crimes. States will have to proceed carefully in those cases to assure victims and the community that these individuals are rigorously supervised. 

While the immediate reason for de-carceration has to do with prison and public health concerns there are other, economic reasons for expanding the use of risk-based early release and more parsimonious use of incarceration generally. Prisons absorb an enormous amount of public resources. With federal and state budgets crumbling under the weight of recession, unemployment and rapidly escalating deficits, maintaining such large numbers of people in prisons is quickly becoming a luxury social good. 

We need to be smarter and more targeted in our use of prisons to ensure that those who are there really require a high level of isolation to protect public safety. COVID-19 presents an ideal moment to test the thesis that we can achieve as good or better public safety and corrections results with a smaller prison population.

Brent Orrell is a resident fellow at the American Enterprise Institute. Grant Duwe is an adjunct scholar at the American Enterprise Institute and the director of research for the Minnesota Department of Corrections.