COVID-19 Response: Shrink the Criminal Justice Footprint (ep. 93)

April 2, 2020
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As the coronavirus continues to spread across the country, the nation’s jails and prisons have become ripe breeding grounds for COVID-19. Millions of people who interact with our criminal justice system are at risk. Last weekend marked the first COVID-related death of an inmate and new reports show that the rate of infection in prisons is far higher than their surrounding areas, evidence of the urgent need for states and cities to jump into action. Some are responding to the crisis by beginning to release people in jails and prisons who the Center for Disease Control (the CDC) deem "high risk" for contracting the virus. Others, however, are refusing to budge, leaving advocates, former judges, and district attorneys to call for change. A new poll shows 63% of registered voters would like to see people released during the unfolding pandemic.

In this episode, you’ll hear from Lewis Conway, a National Campaign Strategist for the ACLU who has experienced incarceration, and also Udi Ofer, the ACLU’s Deputy National Political Director, on what prisons should be doing to prevent the spread of the virus. 

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KENDALL CIESEMIER
From the ACLU, this is At Liberty. But I’m not Emerson Sykes. My name is Kendall Ciesemier and I’m the producer of this podcast. I’m taking the reins for this episode as Emerson is off.

A quick note to listeners: Today’s episode was recorded outside of our office due to our mandatory work from home policy during the unfolding Coronavirus pandemic. We take seriously the safety of our staff and the guests on our podcast. Please excuse any change in audio quality.

As the coronavirus continues to spread across the country, the nation’s jails and prisons have become ripe breeding grounds for COVID-19. Millions of people who interact with our criminal justice system are at risk. Last weekend marked the first COVID-19 related death of an inmate, and new reports show that the rate of infections in prisons is far higher than their surrounding areas, evidence of the urgent need for states and cities to jump into action. Some are responding to the crisis by beginning to release people in jails and prisons who the Center for Disease Control (the CDC) deem "high risk" for contracting the virus. Others, however, are refusing to budge, leaving advocates, former judges, and district attorneys to call for change. A new poll shows that 63 percent of registered voters would like to see people released during the unfolding pandemic.

On this episode, you’ll hear from Lewis Conway, a National Campaign Strategist for the ACLU who has experienced incarceration, and also Udi Ofer, the ACLU’s Deputy National Political Director, on what prisons should be doing to prevent the spread of the virus.

LEWIS
[00:01:42] There is no way to social distance yourself in prison. It’s kind of built in a way that demands you to be in close contact with individuals. Even when you’re all not in your cage, you’re still within a large cage.

KENDALL:
This is Lewis Conway. In 1991, Lewis was given a 20 year sentence. He spent eight of those years in prison and 12 on parole, completing his sentence in 2013. During those eight years in prison, he was held in close quarters with hundreds of other people and was often forced to go without simple everyday resources. He remembers this well:

LEWIS
[00:02:24] I mean, you live in a cell with someone, so that means you sleep with someone, you exercise with someone. That means you're gonna use the same bathroom as someone, you’re gonna brush your teeth with someone. You know, you’re gonna go to commissary with people. You're gonna to go to the rec yard with people. You’re gonna stand in the chow line with people, on the other side of that chow line you’re going to serve food with people. You're going to be cutting officers' hair, right. You're going to be engaging with those officers. You know, on an average day in prison, I interacted with at least 85 percent of the people in my dorm, which was like 150 people.

KENDALL
In prison, everyday resources are rationed. A lack of soap is troubling during a normal flu season, but in the era of Coronavirus, where vaccinations and medicines are not yet available, health organizations say soap is the single best preventative measure.

LEWIS
[00:03:25] So getting access to hand soap, and things of the sort, come in two ways: you can either buy them on commissary or they’re issued, and when they’re issued, they come in these one by two inch squares that's about a half inch thick. And you get two of those. And those two bars of soap are supposed to last you for a week. And you’re supposed to shave with that, to wash with that. So washing your hands with that same soap doesn't even factor into your daily calculus like you're not, you've only normally used, just water.

KENDALL
[00:04:08] What’s more? The medical care available to prisoners is both expensive and inadequate.

LEWIS:
[00:04:14] Medical care in prison, first of all, was not a right. It was a privilege. And it was a privilege for those who had the money to pay the copay.

The common remedy for a cold or flu or anything in prison was this little pill they used to call a cold pill. And that's what everybody used to get. You know, if the cold pill couldn't solve it, then you know, you're in trouble. So I can't even imagine something as virulent as Corona hitting a closed institution like that. Not only is it gonna spread. It's not gonna be able to be contained.

KENDALL
[00:05:04] Lewis’ concerns are being echoed by other advocacy organizations and even former judges and district attorneys. I spoke with Udi Ofer, another ACLU colleague of mine, to break down the mechanisms for how we can lessen the risk to people stuck within the system.

KENDALL
[00:05:19] Udi, you've visited many prisons and jails through your long standing criminal justice work. Does Lewis' experience ring true compared to what you've seen on your own visits?

UDI
[00:05:31] Lewis's experience is absolutely in line with what other people have experienced with what we've observed as the ACLU. So, look, I mean, mass incarceration was a public health crisis before the Coronavirus pandemic. And it's an even bigger public health crisis after the coronavirus pandemic. Right. It's a disaster that's been waiting to happen. 2.3 million people live in our nation's jails and prisons where they eat and sleep and congregate in confined spaces, creating the perfect breeding ground for COVID-19. The United States has the highest incarceration rate in the world. We have about 5 percent of the world's population, yet 21 percent of the world's prisoners. And about 40 percent of incarcerated people suffer from a chronic health condition. Right. So, many people in prisons, even before Coronavirus hit, were already in relatively poor health and suffered from serious chronic conditions. Right. This was due to a lack of access to health care in the community they came from. But also the fact that, for decades our correctional facilities have had horrible health care systems. So all of this was a public health crisis before Coronavirus. And it's an even bigger one today. Which is why, you know, public health experts are recommending that part of the COVID-19 response must be reducing the size of the nation’s jail and prison populations. And at the ACLU, that's exactly what we've been working hard to make happen.

KENDALL
[00:07:15] How are we at the ACLU, though, not just thinking about the conditions that people are living in, but thinking holistically about how to mitigate harm and mitigate how many people need to be interacting with the criminal justice system as a whole? What can we do to lessen the footprint of the system in order to make sure that less people are exposed to the virus?
UDI
[00:07:37] Yes. So right. So the two things that we're focusing on, kind of two buckets. And by the way, we began, we've been working on this for basically since COVID-19 hit. But on March 18th, the national ACLU and 38 of our state affiliates on the same day sent letters to the federal government, to state and local officials, demanding the release of peoples from prisons or from prisons and jails and really kind of focusing on two buckets of issues, which is what you're getting at. We need to stop funneling people into the criminal justice system in the first place. There are about 10 and a half million admissions a year into our nation's jails, ten and a half million. When somebody is admitted into jail, there's a big decision point that comes usually within 24 to 48 hours where a decision needs to be made. What do we do with this individual while they're awaiting their trial?

[00:08:33] A lot of people are able to get out and go fight their day in court from home and be able to hire an attorney and so forth. But many, many, many people end up getting stuck in jail, incarcerated in jail because they cannot afford cash bail or for other reasons. Someone is arrested in the United States every three seconds. But 80 percent of all arrests in America are for low level offenses. So this includes non criminal behavior. So like violations, like disorderly conduct, and includes drug violations like marijuana possession or other low level offenses. Only about 5 percent of arrests in America, of those 10 million plus arrests that happened in any given year, are for offenses involving violence. So one of the key things that jurisdictions can do now to stop funneling people into jails is to stop making arrests for low-level offenses. Secondly, in other circumstances, police should start issuing citations instead of making an arrest. Right. Police in many jurisdictions have this option. So instead of handcuffing you, booking you, fingerprinting you, photographing you, sending you to central booking and then to a jail, they could give you a ticket. And it's called a desk appearance ticket in many jurisdictions. And it just basically says show up in court on this particular date to face a judge.

[00:09:57] Another category of how you can decrease the number of people going into the system is for prosecutors to stop using cash bail. You know, there are hundreds of thousands of people who are in jail on any given day. So on any given day, there is about 600,000 people in jail. Of those, about 400,000 to 500,000 are what's known as pretrial detainees. So these are people who have not been convicted of any crime, but yet they're incarcerated in jail. And a huge chunk of that, many of them are in there solely because they cannot afford cash bail. So that's why we're telling prosecutors now to stop seeking cash bail. And if anyone is in your jail because of cash bail, they should file motions to release people from jail. So that's on the funding part. Those are the two big that could happen.

KENDALL
[00:10:47] So Udi, as it pertains to releasing people, I'm wondering what are our recommendations thus far and how could jails or prisons release people? Is this through the system of commutations and clemency? What's at our disposal here?

UDI
[00:11:06] Yeah, we have been particularly hyper focused in terms of what we think should happen today on the communities that are the most vulnerable to COVID-19 as indicated by the CDC. So there are two categories to that, right. So one is the elderly, right. There are about 200,000 people who are incarcerated in America today who are 55 years old or older. That's about a 300 percent spike over the past 20 years. And we know that older people require more care and more services.

[00:11:40] So we believe that this is a population that immediately, governors parole boards the president of the United States, should begin focusing on for release, for commutations, for parole, through other mechanisms. For anyone who may be worried about the public safety risk of releasing, you know, older people who are incarcerated. We can assure that, there's study after study that shows that people age out of crime. Right. It's pretty consistent. And the recidivism rate for people who are 55 or older, and to be honest, people who are 40 or older, is just so incredibly low. It is in the low single digits. So it makes no sense to hold this population in prison now, from a public health perspective, from a financial perspective and from a public safety perspective. The other category of people that we're hyper focusing on, again, following CDC guidelines, are people who have underlying medical conditions that the CDC has indicated are particularly vulnerable to COVID-90. So we’re asking, in fact, that, you know, we're demanding from governors, from parole boards and the president to look at these populations and release as many people as possible. So, for example, if someone was already going to be released in the next year and has one of these underlying medical conditions just released them now.

KENDALL
[00:13:07] That makes a lot of sense. I mean, you've got to work in kind of sorting out the hierarchy of need. Are we seeing any movement here? Are governors listening? Are judges listening? Are there any hopeful spots as far as action goes?

UDI
[00:13:23] Yeah. So, first of all, since the ACLU sent its letters, you know, in 38 states and the federal government, the response has been overwhelming. Right. ACLU offices have been meeting all over the country with governors, with prosecutors, with other government stakeholders across the nation. And we're asking for immediate actions.

[00:13:44] I think the most effective thing that we can see in terms of what should be done has to be an action by state governors and the U.S. president. The reason I say that is, when we think about our criminal justice system, the truth is we don't have one system in the United States. Right. We have at least three thousand different systems. The criminal justice system is incredibly decentralized. You have the federal system, which only accounts for about 10 percent of the 2.2 million people. Then you have states then you have counties then you have municipalities and you have localities. It's incredibly decentralized. It is going to be impossible to go county by county, jail by jail, prosecutor by prosecutor, sheriff by sheriff in order to stop this crisis.

[00:14:31] We need governors to act now. And what we're asking them to do is to issue an executive order. And we've already drafted a model executive order that we're shopping around, that would implement all the various things that we just talked about. Right. That, you know, releases from prison vulnerable communities. And there are various mechanisms on how to do that. Right. It could be through granting parole if a person's already eligible for parole. It could be the governor using his or her commutation authority, clemency powers and to stop the funneling people into jails. And again, that could be done by changes to police practices, to prosecutorial practices, to sheriff practices. So we're having those conversations across the country and jurisdictions are starting to react. The New Jersey Supreme Court, the highest court in New Jersey, ordered the release of people who are on probation and low level offenses from the state's jails. So that's going to impact about a thousand people. We expect to get out of jail in New Jersey. In Ohio, we've seen judges in Cleveland and in other counties order the release of hundreds of people from jails due to the Coronavirus concerns. They're mostly focusing on nonviolent offenders and they're also asking the police to start issuing tickets instead of making arrests, which is something we just talked about. In San Francisco we've seen the district attorney there, Chesa Boudin, work with the public defender to take several steps to release as many people as possible who are more vulnerable to Coronavirus. We're seeing action in L.A., in Mecklenburg, North Carolina. So we are seeing more and more local jurisdictions beginning to add, we’re also seeing state supreme courts. The chief justice in Montana issued a letter last week recommending that local judges begin to release people from jails as a response to COVID-19. So we're seeing action begin to happen, but we need it to move quicker because we really are battling the clock here.

KENDALL
[00:16:40] I'm wondering, you know, you just listed off so many different localities, states that are doing good work or at least starting to do good work on the issue. It struck me as you are listing off all of that, that your team is really tracking this and staying abreast of all the changes and all the updates and working across the country in a variety of ways. How are you guys doing that? How are you managing the process of addressing and identifying where the highest needs are and how you can best serve?

UDI
[00:17:15] It's been really challenging. I mean, first of all, everyone's burning the midnight oil. You know, I can tell you how many conversations I've had with my team at midnight over the last couple of weeks, which is something I never want to do just because I want to respect people's time. But I think the entire team realizes that we're in a special moment right now where we just need to do everything we can to save people's lives. But then there's also, you know, the ACLU affiliate network, which is one of the greatest gems of the ACLU. So, you know, we've now created this real cohort community within the ACLU network. Right, of affiliates and national office, where we're talking on a regular daily basis about what's happening in their jurisdictions. What can we do to support what can we do to elevate? But we're constantly triaging this, making determinations about where should we apply pressure, where we shouldn’t. I would say at this point that we're in right now. So this is definitely a snapshot of the moment that when we're talking, we're looking for governors to step up to the plate and take bold action.

[00:18:21] We need a governor who's willing to really apply a holistic and aggressive approach to this problem, something that the New Jersey Supreme Court just did, but even more. So, we're having several conversations this week with governors in numerous states. And I'm hoping that one of them will step up. But the reason that we're focusing right now on governors, because we believe that once one governor will act, other governors will follow. So that's the kind of kind of strategic thinking that we're trying to apply right now, since we can't be everywhere at the same time. We're trying to create precedent and we're trying to find kind of the brave souls who are willing to be the first. And then it'll be easier to get other actors to follow.

KENDALL
[00:19:06] So I know you focus predominantly on the advocacy side here and less on the litigation. But, you know, we all work together here at the ACLU. How are you working across the teams between the advocacy side and then our lawyers within the National Prison Project and and the Criminal Law Reform Project? How are you working across departments to deal with this problem and to triage where we need potential emergency litigation?

UDI
[00:19:37] Yeah. No, that's a great question and something that I think a lot about. So about two weeks ago, I initiated a biweekly and bi weekly being twice a week meeting between the litigators and the advocates. When we meet now twice a week, so on Mondays and Thursdays to start off the week into and off the week where we have exactly this conversation. Right. What are the hotspots that are popping up? What are the themes that we are seeing and where do we need to deploy our resources? And look, the beauty of the ACLU is that we're multi tactical. And we are at our best when we don't think by tactic, but rather we think by problem area and solutions. Right now we've identified the solutions. The solutions are getting people out of prisons and jails and stop funneling them into prisons and jails. And what we’re doing right now is trying to throw every tactic in the tool box to achieve these goals.

Our campaign strategists, our organizers, our policy analysts are working daily with our litigators across projects to try to achieve these goals. So we're meeting at least twice a week in a structured setting, but the conversations are happening basically every hour.

KENDALL
[00:20:55] And you, I know, have been working to reform the criminal justice system at large for decades. Have you experienced anything like this concern before?

UDI
[00:21:08] Well, what we're experiencing now. First of all, this is the scariest I've ever felt or the most scared I've ever felt. Because while we've always known and we've always lived through mass incarceration killing people in the sense of it's been a public health crisis. Now it's like literally we're like counting the hours right, of how fast can we protect people. So that is obviously incredibly depressing and challenging. But if I find a silver lining in all of this, and trust me, I'm trying to pull it out as much as I can. I’m not suggesting in any way that any of this is positive. But if I was forced to find a silver lining, it's this: one of the greatest challenges we always face in this area. And literally, we just got to poll back a couple of days ago on kind of mass incarceration. What do Americans think? And consistently what the polling always shows is that people actually recognize that there's a mass incarceration problem and when we ask you believe the criminal justice system is broken? People will say yes. When we believe that you should reduce the number of people in jails and prisons. People say yes.

[00:22:17] But then when we ask the question, how important is this issue for you? It's usually pretty low. So I think if anything, maybe because of this pandemic and because people are seeing how, are now for the first time, for many are thinking about what the life of someone who's incarcerated look like. Maybe it will finally elevate what has already been a feeling, and that is that we need to end mass incarceration, but give it that sense of urgency that we've been hoping for and fighting for for a long time. So what I'm hopeful is that Americans will now understand that we are in a public health crisis that exists in our nation's jails and prisons, and we have to act now. Because the reason that the United States right now has a bigger crisis in our prisons and jails in other countries that are also facing this pandemic is because we have mass incarceration in the United States. So we need the fierce urgency of now to begin ending mass incarceration and really to have Americans think of this as a public health issue that needs to be addressed now.

KENDALL
[00:23:27] Something that really struck me and just listening to you reflect on that. I think the idea that even if people thought, OK, well, someone did something wrong, they deserve to go to prison. I think the moment that we're in right now, it's that living in prisons could actually be a death sentence for a lot of people. And there is some urgency in that. Even beyond whether or not people believe we are dealing with or have the urgency of dealing with a mass incarceration problem.

UDI
[00:24:04] Yeah. And I think that's absolutely right. I mean, I totally agree with the framing that you just used. And by the way, I'll add another component that's really important and that is, you know, hoping that Americans, and I think they have a right to a large extent, view this as a racial justice issue. So the reality is that people of color are disproportionately impacted if we are going to fail to reduce the jail and prison populations in response to this pandemic. Right. And that is because people of color are disproportionately arrested, prosecuted, jailed and imprisoned. So as we're, you know, fighting for this fierce urgency of now on this issue, I think it's really important for governors and other stakeholders to understand that this is a crisis that doesn't impact everyone in the same way that people of color are disproportionately impacted. So I think that message is going to help sway certain governors to act even more aggressively. And I think it's really also going to bring to life something that we've been talking to communities across the country for a long time. And that is mass incarceration is a result of a history of racism past and present in the United States, that communities of color are disproportionately impacted by it. And now, as we're facing this public health crisis, even more so in jails and prisons, people of color are going to be disproportionately impacted. And it’s one of the big reasons that we must act now.

KENDALL
[00:25:31] Thank you for that, Udi, it's important to remember that this doesn't impact everyone equally. I want to wrap up with giving people an entry point for how they could support the work that we're doing at the ACLU or just the effort at large to release people from prison.

UDI
[00:25:53] Yeah. So we launched the petition that is directed at President Trump and at all 50 state governors and Washington, D.C., calling on the top executive office holder to follow all recommendations and release people from jails and prisons and stop having people go in in the first place. I know people get bombarded by petitions all the time. But I hope that the listeners are going to take this one seriously, because I do actually believe that it can make a huge difference. You know, our plan is to deliver these petitions to President Trump, to state governors. So sign on to that petition, which is available on ACLU.org. Right.

KENDALL
We’ll put it in the show notes.

UDI
[00:26:35] Awesome. Yeah. Send it to your friends and family. So far, the response rate has been great. We just got some of the data analysis from our team that shows that people are responding to this petition more than to other petitions in the past. So that's good. But we needed to go even further. So I would say that's the most concrete way right now that people can get involved. But other things like no matter what state you're living in right now. This is a top issue. And there's an ACLU office in your state that is fighting on this issue. So this is where, you know, you need to find out what is happening in your state, whether it's we're trying to convince your local prosecutor to stop detaining people on cash bail or your governor to issue an executive order. There is some advocacy happening in your state. So I would make sure to follow your state affiliate and get involved in the movement.

KENDALL
[00:27:31] Great. Well, we will definitely link the petition in the show notes for people to sign on with their support. Thank you so much for taking the time out of your schedule to chat with us. We really appreciate the work you're doing.

UDI
[00:27:45] Thanks very much.

KENDALL
[00:27:47] For Lewis, there’s never been more urgent time to act. The stakes are clear.

LEWIS
[00:27:52] I worry about the apathy, I worry about the more time we take deciding what to do, the more lives are lost, the more lives are in danger, the more we wait and decide if folks should be released for breaking a rule, the more folks we're putting in danger. And so I think it's the time of bold and swift action.

KENDALL
[00:28:21] Thanks so much to Lewis for sharing his experience with us. And thanks to you all for listening. If you enjoyed this conversation, please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback. If you’d like to support our COVID-19 response work, you can donate at aclu.org/donate. Until next week, stay safe everyone!

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