The coronavirus is spreading like wildfire through U.S. prisons. As of last week, more than 300 people had died of the virus in state and federal facilities. More than 20,000 had tested positive — a major undercount, given the lack of large-scale testing. Yet despite repeated warnings from public health experts that the only way to slow the spread of the virus behind bars is to release people in significant numbers, the U.S. prison population has remained largely unchanged in the middle of the pandemic.
While state governors and the Bureau of Prisons, which runs federal facilities, have responded to mounting public pressure by authorizing the release of select groups of incarcerated people, restrictive criteria and bureaucratic hurdles have meant that those releases, where they have actually happened, have made no significant dent in what continues to be a sprawling mass incarceration apparatus.
Overall, the U.S. prison population has dropped by only 1.6 percent in the first three months of this year, a new report released Thursday by the Vera Institute of Justice shows. That’s a population reduction of about 20,000 people nationwide, in a system that incarcerates nearly 1.3 million. The report, which aggregates data from 44 states and the Bureau of Prisons, notes that as of the end of March, “none had moved with the urgency required to meet the recommendations of public health officials to reduce incarceration.”
“A lot of it just comes down to politics,” Jacob Kang-Brown, a senior research associate at Vera, told The Intercept. “The mechanisms for releasing people from prisons are there: Governors often have pretty extensive clemency power that would allow them to release people quickly, and then you have a whole parole system that’s set up to release people from prison. … But there’s no evidence that this is ramping up in a way that’s appropriate and responsive to this crisis.”
According to the report, the BOP, which has recorded the second-highest rate of Covid-19 infections and at least 42 deaths, reduced its population by only 0.2 percent, fewer than 400 people. Most states also recorded population reductions in the low hundreds, with large states like New York, Florida, and California reporting the largest overall drops and Vermont, North Dakota, and Oregon reporting the largest drops relative to their prison population. Ohio, which has recorded the highest number of Covid-19 infections in prisons and at least 42 deaths among inmates, saw its overall prison population reduced by only 11 people. And in five states — Idaho, Iowa, South Carolina, West Virginia, and Wyoming — there were more people in prison at the end of March, in the midst of a global pandemic, than at the end of 2019.
Overall, however, the U.S. prison population remains on a downward slope. In 2019, there were 2.2 percent fewer people in prisons than the previous year, with 437 people in prison for every 100,000 residents, down from 449 per 100,000 the previous year. The U.S. prison population has dropped by 17.5 percent since its peak in 2007. Most states continued to see their incarcerated populations drop, while only a handful — like Nebraska, Idaho, and West Virginia — recorded growing prison populations. That overall declining trend is what explains in part the gradual population drop prisons are continuing to see this year: The reduction is due largely to generally declining prison populations, not necessarily active efforts to release people because of Covid-19.
In fact, while the coronavirus crisis has brought unprecedented pressure on governors to release people incarcerated in their states, it’s not clear that the crisis is having any significant impact on the pace of the decline in U.S. incarceration. “Prisons are releasing a lot of people into the community, under normal circumstances, and reducing prison population,” noted Kang-Brown. “But we would like to see this happen more now, in light of the pandemic, and happen more broadly than it is, and the data that we collected shows that’s just not happening.”
The Vera report is consistent with an analysis published by the Prison Policy Institute earlier this month that found that while some jails had moved to confront the coronavirus crisis by significantly reducing their population, state prisons “released almost no one.” That analysis showed that most jails had reduced their detained population by over 15 percent, and that more than one-third had reduced their population by 25 percent. Most states’ prison systems, by comparison, had only seen their population drop by a couple of percentage points.
That difference in population reduction is explained in part by the fact that jails, where most people are held in pretrial detention, can see significant population drops as police curb arrests and district attorneys choose not to prosecute certain crimes, as they have in some jurisdictions in response to the current crisis. Officials have been far more reluctant to release people convicted of crimes.
“State governors and departments of corrections and parole boards, which have had early release systems that move very, very slowly for far too long, are wary of doing anything that might put them at a political risk right now,” said Wanda Bertram, a strategist at the Prison Policy Institute. “A majority of the people that are inside their state prisons are people that have committed violent offenses, which has traditionally been the third rail of criminal justice reform.”
As advocates across the country have lobbied for states to release people from prisons, they have largely focused on the most vulnerable, including the elderly and those with preexisting conditions. “States have been taking those demands and they have used them to craft release policies that are incredibly stringent,” noted Bertram. “So we’re seeing states set a bar for releases that requires factors like medically vulnerable, close to the end of your sentence, over the age of 50, and you committed a nonviolent crime.”
The distinction between those convicted of violent and nonviolent crimes is one that has crippled the criminal justice reform movement for years, effectively dividing incarcerated people between those who are deemed worthy of relief and rights, and those who are not. The coronavirus crisis has not changed that dynamic, with officials making a nonviolent conviction a prerequisite for already narrow eligibility requirements for release.
But excluding those convicted of violent crimes from Covid-19-related relief fundamentally undermines efforts to stop the virus from overwhelming prisons.
“We reject the notion that only people convicted of non-violent crimes within 90 days of release should be saved from COVID’s spread behind bars,” a coalition of New York advocacy groups wrote in a statement earlier this week, after Gov. Andrew Cuomo slightly expanded narrow requirements for release in the state. So far, only 162 people were released from New York prisons, less than 0.5 percent the state’s incarcerated population, the group noted. At least 15 people have died after contracting the virus in New York prisons.
“Cuomo is ignoring these best practices and hoping to spin his way through the crisis already taking over his prisons through public relations alone,” the coalition of advocates wrote. “Incarcerated New Yorkers previously convicted of violent crimes, especially older people and those who have already served decades in prison were not sentenced to death.”
But even where states are pledging to release limited groups of people, those releases are not happening fast enough. As The Intercept has reported, New Jersey Gov. Phil Murphy signed an executive order in early April allowing the temporary release of high-risk inmates and others convicted of nonviolent offenses. But weeks later, fewer than 3 percent of those eligible had been released and at least 38 incarcerated people were dead. In Pennsylvania, Gov. Tom Wolf granted temporary reprieve for incarcerated people who met a set of criteria. But while up to 1,800 people were eligible, only 150 had been released a month later.
“We are seeing states pledge to release a specific number of people, or up to a specific number of people, and that number tends to be several hundred to a couple thousands, which is still far too little to meaningfully reduce the spread of coronavirus within prisons,” said Bertram. “But even then, those targets are not met.”