Issues / COVID-19 and Mass Incarceration

The COVID-19 pandemic has presented an unprecedented global challenge that has impacted the daily lives of all Americans. The pandemic’s dire consequences — including infection, illness, and the tragic deaths of hundreds of thousands — have, and continue to, disproportionately affect vulnerable individuals behind bars, from the rapid spread of the disease inside crowded prisons to incarcerated people’s lack of access to adequate healthcare.

FJP’s COVID-19 and Mass Incarceration resources aim to identify innovative thinking and best practices for elected prosecutors and other criminal justice leaders responding to COVID-19, as well as the challenges they face. A prosecutor’s obligation to keep the community safe extends behind prison gates and with this fast-moving virus, prosecutors and other leaders must continue to act to protect the health and safety of those who are incarcerated and the entire community.

A Message from DAs to Governors: Decarcerate Prisons Now

In this powerful video, DAs from across the United States read from their open letter to our nation’s governors. Reform-minded prosecutors have been working to shrink jail populations in the wake of the coronavirus; it’s time for governors to step up, join them, and save lives in prison today.

Information and Resources

COVID-19 and Mass Incarceration: Crisis at a Glance 

AUG. 28, 2020 – Immediate action is necessary to halt the rising death toll in correctional and detention facilities across the United States. And COVID-19 outbreaks in jails and prisons don’t just threaten those inside – the wildfire spread of this infection also endangers staff and personnel who come and go from these facilities, as well as their families and the broader community. This resource provides an overview of the scale and nature of the crisis within those facilities, and answers frequently asked questions about why COVID-19 outbreaks in these densely populated settings are so dangerous.

COVID-19 and Mass Incarceration: Innovations and Solutions at a Glance

AUG. 28, 2020 – Elected prosecutors hold enormous power within the justice system; their engagement is vital to saving lives during the COVID-19 crisis. This resource offers insights into trends and promising practices among reform-minded 21st Century Prosecutors responding to COVID-19 — with a focus on decarceration — and also answers frequently asked questions.

COVID-19 and Mass Incarceration: Voices from Inside 

AUG. 28, 2020 – This resource highlights firsthand accounts from individuals behind bars, their families and loved ones, and staff in these facilities. It underscores the human toll of the COVID-19 pandemic, including the tremendous anxiety and terror experienced by all of these individuals.

COVID-19 and Improving Conditions of Confinement

SEPT. 2020 – As prosecutors pursue critical decarceral strategies in response to the threat posed by COVID-19, they should simultaneously take steps to ensure that people who remain in custody receive recommended public health protections, access needed treatment and healthcare, and are afforded their full constitutional rights. FJP’s “Issues at a Glance” brief examines how prosecutors can promote these steps in partnership with community and correctional leaders, justice system stakeholders, and public health officials, and spotlights examples of prosecutorial leadership and innovation on these issues.

COVID-19 and Youth Justice Issues

AUG. 2020 – No children belong in prison – especially during a pandemic. Conditions were poor in youth correctional facilities prior to the onset of the coronavirus virus, but now young people behind bars face additional trauma, medical risk, and dangerous isolation. While significant progress has been made in reducing the number of children who are incarcerated, far too many children remain locked up. Prosecutors have a mission to promote safe and healthy communities, and that includes protecting children who come into contact with the criminal legal system. Read more about what District Attorneys have done and can do to protect young people in our “Issue at a Glance” brief.

“These concerns are dire. There is no time to delay – waiting even a few days can be the difference between getting young people out of a facility before anyone there is infected versus the much greater challenge of responding amid widespread transmission within a facility. It is imperative that DAs, along with other leaders, act now to protect the health and safety of young people who are incarcerated and the entire community.”

COVID-19 and the Criminal Justice System: Reducing and Avoiding Incarceration During a Pandemic

MAY 2020 – The spread of COVID-19 in prisons and jails across the US puts the health and safety of communities everywhere at risk. In this “Issues at a Glance” brief, FJP examines the important role prosecutors can play in mitigating this public health crisis by reducing jail and prison populations not only in the immediate term – when lives are at stake and the death toll is mounting – but also into the future. The brief offers concrete recommendations for how prosecutors can promote these approaches and spotlights specific examples of actions taken by elected prosecutors around the nation to protect the health and safety of all members of their community.

“We all have a responsibility to try to stem the spread of COVID-19. Releasing individuals who do not pose a danger to the public can prevent them from being exposed in prison, create a safer environment for those who remain there, and help protect our entire community during this pandemic.”

Speaking Out

Pathway to a New Normal: COVID-19 and the Opportunity for Prosecutors to Shrink the Justice System 

MAY 2020 – In this video, elected prosecutors discuss the human toll of COVID-19, the responsibility of elected prosecutors to mitigate the crisis, and the need to create a new normal with strategies that shrink the justice system and depopulate prisons and jails, while continuing to promote safe and healthy communities.

U.S. taxpayers already pay a high price to support America’s giant prison population. Now COVID-19 is costing them even more.

AUG. 20, 2020 – In this op-ed in MarketWatch, FJP Executive Director Miriam Krinsky and Right on Crime’s Marc Levin discuss the dire need to reduce the number of people in jails and prisons in the wake of COVID-19 from both a humanitarian and fiscal responsibility perspective. Over-incarceration doesn’t reduce crime, poses an enormous burden to taxpayers, and — in the context of the current public health crisis — poses a deadly threat to both those behind bars as well as in the community.

“This pandemic has put a bright spotlight on the problems that have long festered in U.S. prisons and jails….By taking this opportunity to reexamine who, if, and for how long we incarcerate, as well as conditions of confinement, policymakers can ensure the U.S. emerges from this pandemic with a justice system that enables everyone to be safer and healthier.”

COVID-19 and the Crisis of Young People Behind Bars

AUG. 2020 – Treating kids like kids must be our fundamental starting point for rethinking youth justice, and prisons should have no place in our reimagining of that system. Conditions and outcomes in youth correctional facilities were poor even prior to the onset of the coronavirus virus, but now young people behind bars face additional trauma, medical risk, and dangerous isolation that is detrimental to their physical and mental wellbeing. As COVID-19 continues to spread in correctional facilities across the country and stretches budgets thin, we must ask ourselves, why we are continuing to lock children away in facilities that are costly and ineffective when better alternatives exist. In this video, experts and advocates discuss why these facilities must be shut down, once and for all.

Thirty-five DAs Issue Open Letter to Governors Calling for Immediate Action to Address COVID-19 in Prisons

JULY 17, 2020 – Read the open letter signed by 35 DAs from across the US to our nation’s governors demanding action to immediately decarcerate prisons. In the letter, these leaders call for governors to use all the tools at their disposal to halt the rising tide of the coronavirus outbreak in prisons, including ordering the immediate release of vulnerable individuals and those near the end of their sentence, providing support for reentry, and improving conditions within prisons. Read the letter and the release.

Prisons Are Overwhelmed With COVID-19. Why Aren’t Governors Doing More?

JULY 17, 2020 – Read more about the urgent need for governors to decarcerate prisons in this op-ed in The Appeal by San Francisco District Attorney Chesa Boudin and FJP Executive Director Miriam Krinsky. Over half of our nation’s COVID-19 deaths and infections among people incarcerated and working in local, state and federal correctional and detention facilities in the United States are in state prisons, and these facilities are hot spots for the pandemic. This op-ed underscores the universal failure of governors to address this crisis, and the need for immediate action to avoid further illness and death.

“How governors respond to this pandemic will define their legacy. They all face a choice: save lives in prisons now, or hand down potential death sentences with their inaction and watch harm ripple through communities and exacerbate inequities into future generations.”

Fair and Just Prosecution Statement on Governor Newsom’s Order Releasing 8,000 in California Prisons

JULY 10, 2020 – In this statement, FJP Executive Director Miriam Krinsky praised California Governor Gavin Newsom’s decision to release 8,000 individuals from state prisons, while also calling for more rapid and comprehensive decarceration and urging governors in other states to follow suit.

“All governors can learn from Governor Newsom’s leadership – and also from the cost of the state’s delay – and take dramatic action before their own states suffer similar or higher death tolls.”

As Pandemic Continues, Safe Injection Sites Could Save More Lives

JULY 8, 2020 – In this op-ed in The Philadelphia Inquirer, Philadelphia District Attorney Larry Krasner and FJP Executive Director Miriam Krinsky discuss the urgent need for the lifesaving services provided by overdose prevention sites (OPS) in the wake of multiple public health crises that our nation is now facing. An OPS like Safehouse in Philadelphia is a proven harm reduction strategy that saves lives, promotes trust in the justice system, and reduces the adverse impact of substance use disorder.

“America is facing three deadly epidemics: the opioid overdose crisis, COVID-19, and the systemic assault on Black lives. And as we collectively seek to envision a more humane and equitable response to substance use, overdose prevention sites are an important place to start.”

Tragedy of COVID-19 in Prisons Shows Need for Decarceration

JULY 1, 2020 – The rapid spread of COVID-19 in jails and prisons is a racial justice issue. In this San Francisco Chronicle op-ed, 16th Circuit Court of Mississippi (Columbus) District Attorney Scott Colom and FJP Executive Director Miriam Krinsky discuss the importance of continued decarceration in order to protect Black lives both behind bars, as well as the entire community. As the explosion of infections within San Quentin Prison demonstrates, the cost of inaction is catastrophic.

“As countless Americans take to the streets in defense of Black lives and call for the transformation of policing, we must not neglect the threat that COVID-19 continues to present and the urgent need for immediate decarceration.”

Nearly 60 Criminal Justice Leaders Call for Release of Medically Vulnerable Individuals from Elkton Federal Correctional Institution

MAY 28, 2020 – The obligation to keep community members safe does not end at the prison gates. That’s why 59 criminal justice leaders – including 37 current elected prosecutors and 11 current and former police chiefs and sheriffs – filed an amicus curiae brief with the Sixth Circuit Court of Appeals in support of the release or transfer of individuals currently incarcerated at Elkton Federal Correctional Institution (FCI Elkton), a low-level security federal prison in Ohio that has become a COVID-19 hotspot. The brief argues that an immediate and dramatic reduction of the incarcerated population at FCI Elkton is urgently needed to limit the deadly spread of COVID-19 behind bars, among facility staff, and through the broader community. Amici argue that as this serious virus has spread through custodial facilities, incarceration risks becoming a de facto death sentence, particularly for elderly and medically vulnerable populations behind bars. For more, read the release and brief.

“[P]ublic safety is not just a matter of stopping crime, it is also about saving lives, and amid this pandemic, public safety depends on smart public health choices.”

Criminal Justice Leaders Call for Protection of Immigrants in Midst of COVID-19 Pandemic

MAY 1, 2020 – Ten current and former elected prosecutors and law enforcement leaders from across California filed an amicus letter brief with the California Supreme Court in support of a requested court-ordered moratorium on transfer of individuals from local and state custody to overcrowded federal immigration facilities amid the COVID-19 pandemic. The letter argues that the dangerous conditions of confinement in the five immigration detention centers in California put detained individuals, staff at these facilities and the broader community at risk of contracting the deadly COVID-19 virus. Amici further argue that continued transfers only serve to erode trust between law enforcement, prosecutors, and the communities they work to protect, thereby hindering the ability to keep communities safe. For more read the release and letter. 

FJP Speaks Out in Support of Ohio Lawsuit Requesting the Release and Transfer of Medically Vulnerable Individuals from Elkton Federal Prison

MAY 1, 2020 – As COVID-19 ravages communities, individuals who are incarcerated are in grave danger. In this statement, in support of successful litigation, FJP underscores the heightened risk of COVID-19 within correctional facilities and why it is imperative that medically vulnerable people be released immediately. The statement further notes the impact that infections within prisons are already having on the broader community and how failing to depopulate our prisons will make our communities less safe.

Texas DAs and National Experts Challenge Governor Greg Abbott’s Restrictions on Release of Individuals Held Pretrial

APRIL 15, 2020 – As officials started responding to the threat of COVID-19 outbreaks in prisons and jails, Texas Governor Greg Abbott issued an Executive Order restricting judges’ ability to release from jail individuals held pretrial and presumed innocent. Dallas District Attorney John Creuzot, Bexar County District Attorney Joe Gonzales, Nueces County District Attorney Mark Gonzalez and Fort Bend County District Attorney Brian Middleton, along with national criminal justice organizations Pretrial Justice Institute, Law Enforcement Action Partnership, and Fair and Just Prosecution, filed an amicus brief challenging this order, stressing its direct threat to Texans’ public health and safety as COVID-19 spreads rapidly and fatally through jails and prisons across the nation. For more, read the release and the full brief.

“As this pandemic began to take shape in mid-March, Texas officials swiftly took action to limit the risk of coronavirus infections in our jails and save lives. These are the exact steps that are needed in this time of crisis.”

Mr. President, let vulnerable people out of federal prisons now: Coronavirus demands a bold response

APRIL 14, 2020 – In this New York Daily News op-ed, Roy L. Austin, Jr., Vanita Gupta and FJP Executive Director Miriam Krinsky call on President Trump to use his commutation power to remove vulnerable individuals from harm’s way.

“People in our federal prisons aren’t disposable. Leaving thousands of elderly and medically vulnerable people behind bars fearing for their lives isn’t justice; it’s inhumane. We all lose, Mr. President, if this is our response.”

Leaders from Prosecution, Corrections and Law Enforcement Join Efforts to Release Incarcerated Youth

APRIL 10, 2020 – Across the country, youth detention and correctional centers stand vulnerable to catastrophic outbreaks of COVID-19 that put at risk the lives of the youth living in these facilities, the staff that work in them, and the broader community. Recognizing this grave threat, and guided by one of our core principles – treating kids like kids – FJP joined organizations representing corrections and law enforcement leaders in an amicus brief supporting a petition by Maryland’s public defender to immediately and drastically reduce the population in youth detention and correctional facilities. For more, read the release and the full brief.

“Every day we choose not to act, we put young people’s lives at risk.”

Over 400 Former U.S. Attorneys, DOJ Leaders and Attorneys, and Judges Urge President Trump to Release Vulnerable Individuals from Federal Custody to Avoid Deadly Outbreak of COVID-19

MARCH 27, 2020 – In a letter from 419 former DOJ leaders, attorneys, and federal judges, including 36 former U.S. Attorneys, these criminal justice leaders urge President Trump to take rapid action to release medically at risk individuals from federal custody to protect them and our communities from the catastrophic spread of COVID-19 in federal facilities. The letter calls on President Trump to use his executive power to commute sentences for vulnerable individuals, urge policies to limit the number of new people entering federal custody, and secure emergency funding for reentry services and support of state and local efforts to similarly address the spread of COVID-19 in custodial settings. For more, read the release and letter.

“We, as former United States Attorneys, federal judges, Assistant United States Attorneys, and DOJ lawyers and leaders, understand the obligation to protect the safety and wellbeing of everyone in our community…To prevent the rapid spread of COVID-19 in facilities under your federal control, we urge you to start commuting sentences immediately.”

Works of Justice 101 – Temperature Check: COVID-19 Behind Bars

MARCH 27, 2020 – In this podcast, PEN America’s Prison and Justice Writing Program intern Kate Cammell spoke with Fair and Just Prosecution’s Executive Director Miriam Krinsky and Research and Policy Associate Scarlet Neath about how prosecutors are addressing the rights and needs of those in custody during the COVID-19 pandemic.

“We have to realize that public safety also includes healthy communities and if we continue to perpetuate this overincarceration epidemic we’re going to allow the pandemic to take hold.”

COVID-19’s Threat to Millions of Incarcerated People Must Be Addressed

MARCH 21, 2020 – In this Salon op-ed, Portsmouth, VA Commonwealth’s Attorney Stephanie Morales, District of Columbia Attorney General Karl Racine and FJP Executive Director Miriam Krinsky discuss why individuals behind bars are so vulnerable during this public health crisis and the common sense reforms that can be implemented – and should be championed by elected prosecutors – to ensure the health and safety of the entire community.

“It is in times such as these that our moral compass is tested; let us hope – for the health and safety of our entire community – that we pass that test.”

Elected Prosecutors Call for Immediate Reduction of Incarceration and Detention to Address the Impact of the COVID-19 Pandemic on Those in Custody

MARCH 17, 2020 – Thirty-five prosecutors joined in a statement calling on prosecutors, corrections leaders, and the federal government to immediately reduce the number of incarcerated and detained individuals in an effort to address the threat of disastrous COVID-19 outbreaks among these vulnerable populations. Prisons, jails, and detention facilities are severely overcrowded, forcing people into close quarters without access to proper hygiene or adequate medical care. An outbreak of COVID-19 in these facilities would potentially be catastrophic. That’s why elected prosecutors joined in this commitment to immediately reduce incarceration and detention, work with public health and other leaders to mitigate the unchecked spread of COVID-19 in facilities and uphold the rights and needs of those in custody, and reform immigration detention policies. For more, read the release and full statement.

“We, as elected prosecutors, have an obligation to protect the safety and wellbeing of everyone in our community, regardless of their race, ethnicity, or country of origin. Those obligations extend behind prison walls. And they require elected prosecutors to step up in this time of growing public health concerns to address the needs and rights of individuals in these facilities.”

Examples of Innovation

SF DA Chesa Boudin on COVID-19 and Mass Incarceration 

APRIL 2020 – In this FJP video, San Francisco DA Chesa Boudin explains how COVID-19 and mass incarceration have intersected to create a public health crisis threatening the lives of millions of people behind bars in the United States. Citing how San Francisco has lowered its jail population by 40% since January 2020, Boudin urges DAs to take bold and decisive action now to protect the health and wellbeing of their entire community.

COVID-19 and Mass Incarceration: Key Resources

AUG. 2020 – This selection of resources from around the nation features policy guidance for justice system stakeholders with an emphasis on how to decarcerate and promote public health and safety, as well as useful documents and websites tracking policy changes, outbreak hot spots, and litigation. (Updated August 28, 2020)

Fair and Just Prosecution Comments on California Judicial Council’s Emergency Actions 

APRIL 7, 2020 – In this statement, FJP Executive Director Miriam Krinsky praised the California Judicial Council’s action to set bail at $0 for misdemeanor and lower-level felonies and called for judicial and criminal justice leaders in other jurisdictions to follow suit.

“Our nation’s jails and prisons are a ticking time bomb – we have already seen deaths and infection in the hundreds in these dense facilities where abiding by CDC guidelines is simply not possible. This is just the tip of the iceberg and the death count will only mount as this infection takes hold. That’s why leadership and bold action is needed now before more lives are put at risk.”

How San Francisco’s D.A. Is Decreasing The Jail Population Amid COVID-19

APRIL 9, 2020 – In this interview on Fresh Air, San Francisco District Attorney Chesa Boudin talks about his efforts toward rapid decarceration in the wake of COVID-19, the need for reform, and his personal connection to this issue.

Our King County justice system is taking innovative steps in response to coronavirus

APRIL 2, 2020 – In this Seattle Times op-ed, King County Prosecuting Attorney Dan Satterberg describes efforts to safely release 500 medically vulnerable individuals from jail, with the support of an innovative housing program.

“We are a long way from the end of the COVID-19 pandemic, but the innovative steps our King County justice system is taking in response can propel us into a more modern era of criminal justice – all while maintaining public safety. That, we believe, is doing justice.”

KKFI 90.1: “Inmates Now Face COVID 19 – How to Socially Distance the Already Socially Distanced”

APRIL 27, 2020 – On the “Jaws of Justice” radio program, FJP Executive Director Miriam Krinsky discusses the need to reduce the number of people incarcerated during the COVID-19 pandemic and how this crisis is an opportunity to reconsider “tough on crime” approaches to criminal justice.

Salon: “Prosecutors: COVID-19’s threat to millions of incarcerated people needs to be addressed now”

MARCH 21, 2020 – In this Salon op-ed, Portsmouth, VA Commonwealth’s Attorney Stephanie Morales, District of Columbia Attorney General Karl Racine and FJP Executive Director Miriam Krinsky discuss the joint statement signed by over 30 elected prosecutors and the need for elected prosecutors to champion reforms to ensure the health and safety of the entire community.

Los Angeles TimesEditorial: Coronavirus makes jails and prisons potential death traps. That puts us all in danger”

MARCH 18, 2020 – This Los Angeles Times editorial discusses the joint statement signed by over 30 elected prosecutors and calls for rapid reform in Los Angeles County.