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The Looming Unspoken Crisis: How a Pandemic Exacerbates the Unjust Exclusions Wrought by the Criminal System

A detainee sits at the Otay Mesa Detention Center in San Diego.
How the COVID-19 pandemic's impact has the potential to wreak havoc on an often forgotten population.
A detainee sits at the Otay Mesa Detention Center in San Diego.
Amreeta Mathai,
Former Staff Attorney,
ACLU’s Racial Justice Program
Twyla Carter,
Former Senior Staff Attorney,
ACLU Criminal Law Reform Project
Dylan Hayre,
Justice Division Campaign Strategist,
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July 21, 2020

For Black and Brown people, individuals with disabilities, and the LGBTQ community, any contact with the criminal legal system can be a life sentence of punishment. It is not just the precious time taken away from families and communities and turned over to a maze of arrests, convictions, or incarceration. That lifetime of punishment also includes the 48,000 systemic consequences triggered by those mechanisms, each of which creates nearly insurmountable barriers to housing, education, healthcare, family support, or other basic human needs.  Each year, approximately 5 million people are arrested in the United States, and between 70-100 million people have a criminal record. All of these people are routinely blocked from accessing stable housing, medical benefits, employment, financial support, food assistance, and even getting a driver’s license. And that was true before this country was overwhelmed by a global pandemic and the ensuing economic catastrophe.
The COVID-19 crisis has made people with criminal system contact more vulnerable by exacerbating these problems. The restrictions that already make reintegration to the community following incarceration difficult under regular circumstances create an impenetrable barrier to successful reintegration during a pandemic — a crisis that has created mass unemployment, a looming housing crisis, and stretched health care systems thin.
Despite what many have said, this pandemic and the generational harm it has exposed are not equal opportunity disasters. Because people of color, people with disabilities, and LGBTQ individuals are disproportionately targeted by the criminal legal system, they are also disproportionately and devastatingly impacted by underlying community frailty and systemic consequences. The longstanding exclusion of Black and Brown communities from quality and affordable health care, education, employment, and housing has been laid bare and worsened by the devastation that COVID-19 has unleashed on these communities. It is imperative to take immediate action to support people who have had criminal legal system contact, particularly those who are exiting detention facilities amidst the COVID-19 crisis with limited access to supportive services.
Consider the experience of a person leaving a jail or prison facility, or even a police station after their mug shot is shown to the public by the local media. Perhaps their health has worsened since they went to jail. They may have had a physically or mentally traumatic experience while in detention. This person, away from their family, the larger community, society, and certainly the job market, has had to learn to survive in a cage. Upon release, they may be given a few dollars and are forced to navigate a world that may look very different from what they remember.
In the midst of the COVID-19 pandemic and with the potential of a second surge of the virus in the fall, people leaving detention facilities are more vulnerable than ever. Given that most people exiting the criminal legal system have not had income for months or even years and are without a job, they must be able to access affordable and safe housing, food, mental, emotional and physical health care, and employment. Importantly, they will need a mentor or peer-to-peer support person who can help them successfully transition back into the community.
People leaving the criminal legal system also have to learn how to survive despite the thousands of restrictive laws, regulations, and other limitations applied to them. As a start, to address the harmful effects of this longstanding exclusion, state and local governments should offer people immediate access to transitional housing, health care, financial and food benefits, and other resources. This should include lifting restrictions on access to services based on an arrest, an open criminal case, or a criminal record. Additionally, every detention facility should collaborate with transitional services organizations, housing providers, and reentry organizations well in advance of a person’s expected release date. Funding should be directed to those community-based organizations specializing in reentry so that they can expand their efforts.
None of this is impossible. The lack of structural support that currently exists is the consequence of decades of deliberate decisions by policymakers and system actors, and society’s unwillingness to hold them accountable. It can be undone, and it must be. The criminal legal system exploits and exacerbates the gaps created in communities by generational divestment in local services and supports. In the long term, building or renewing our focus on filling those gaps is an absolute necessity if we are going to undo the harm the system has caused. In the immediate term, taking direct action to support people returning to the community through peer-to peer services, stable transitional housing, access to medical care, financial benefits, and food assistance is imperative. There are no perfect or quick solutions to these systemic challenges, but collective progress cannot wait.

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