As the more infectious Omicron variant sweeps across the United States, the nearly 2 million people incarcerated in America are facing intensifying levels of danger and instability. Under the weight of ongoing Covid-19 outbreaks and staff vaccine refusal, sickness, death, no-shows, and rapid turnover, jails and prisons have become increasingly deadly places for those who live and work inside their walls. Failures to protect those held in America’s roughly 5,150 jails and prisons have made these institutions into taxpayer-funded epidemic engines that have driven millions of preventable Covid-19 cases throughout US communities. In response, the consensus among national health and safety experts has been that large-scale decarceration is required to protect the public. For almost two years, lawmakers have largely ignored the appeals of health leaders, incarcerated people, prison staff, and community activists who know very well that, despite claims to the contrary, mass incarceration does not serve public safety.
During the first wave of the pandemic, officials took limited steps to reduce the number of people in their jails and prisons. This led to rapid declines in the incarcerated population, which saw an unprecedented 14 percent drop in a matter of a few months. Notably, this coincided with continued declines in crime rates and no increase in rebooking rates for those released in connection with pandemic measures. It’s also notable that this decline was driven primarily by largely unintended logjams at the front end of the carceral system—as courts shut down and trials were delayed—rather than the systematic, large-scale releases called for by public health and safety experts. During this haphazard process, long-standing racial inequalities in the criminal justice system were exacerbated: the proportion of Black people in the carceral system rose for the first time in a decade, while white people—who are systematically sentenced more leniently than their Black peers and are therefore released more quickly—benefited disproportionately from the chaos.
However uneven they were, these reductions in the incarcerated population were short-lived. By early 2021, as the pandemic raged on and many experienced economic and housing insecurity, jail populations had returned to pre-pandemic levels. And while some state prison systems have seen declines in 2021 (not due to releases but simply because of fewer new convictions and admissions), the federal prison population under Biden has grown for the first time in a decade.
Now, US jails and prisons brace for another winter Covid-19 surge, staff are quitting in droves, and a system already infamous for abuse and neglect is spiraling further out of control. At New York’s Rikers Island, for example, a rise in coronavirus infections coincided with refusals to report to work by hundreds of staff each day. The Correctional Officers’ Benevolent Association has acted with total disregard for the detained people at Rikers for whom the union’s members are ostensibly employed to ensure safety. Until recently, the union was pushing back against consequences for staff who did not show up for work and enacting rolling sickouts in protest against regulations that restrict their ability to use torture-like conditions of solitary confinement. These staffing problems are intensifying preexisting conditions of systematic abuse and have created “an absolute humanitarian crisis” that has killed at least 15 people in custody at Rikers so far this year.
The extensive media coverage of Rikers has largely failed to note that what is transpiring there is far less exceptional than many believe. Parallel crises are unfolding across the United States. and the emergency at Rikers mirrors conditions and events—many never publicly reported—at jails, prisons, and ICE facilities across the country.
Officials nationwide have been scrambling, and failing, to stop the bleeding at carceral facilities buffeted by coronavirus and acute exacerbations of long-standing staff shortages. At Harris County Jail in Houston, for example, extreme understaffing and spikes in violence have driven even more deaths in 2021 than at Rikers. Over 20 people are known to have died there so far this year. At Lee Arrendale State Prison in Georgia, only six to seven guards are showing up for work each day in a prison holding 1200 people. Several Georgia prisons report over 70 percent of their staff positions are unfilled.
In Arizona, conditions are so grim that incarcerated people have filed a class-action lawsuit against the state, claiming the lack of access to medical care constitutes cruel and unusual punishment. In a recent hearing, a deputy warden acknowledged that there are night shifts at Arizona’s Eyman State Prison during which there is only one guard on duty. This single guard is then responsible for running six control rooms and supervising hundreds of incarcerated people living in tight and unsanitary conditions. This dangerous situation has led to a spike in violence, despair, suicides, and a myriad of medical emergencies. Parallel lawsuits brought by guards against administrators have been working their way through the courts in Texas and elsewhere.
Many prison systems, including those in Florida and Illinois, have kept their populations artificially low by temporarily halting transfers from local jails. In turn, overstretched jails have seen their already low staffing rates plummet further amid widespread illness and resignations.
In attempts to shore up operational failures, some prison and jail officials have turned to private contractors or reassigned staff as short-term fixes for a problem that is not going away. New York’s Mayor de Blasio, for example, hired private contractors to temporarily staff Riker’s crumbling system and cracked down on staff who refuse to show up for work. The Federal Bureau of Prisons has reassigned cooks, teachers, and nurses to guard duty, and some states have called in the National Guard to staff prisons. But officials have mostly avoided any steps toward releasing large numbers of incarcerated people.
The staffing shortages and allegations of systemic abuse and disorder at prisons have led at least 12 states to close prisons since 2020. But none of these states have taken serious or sustained steps to release the at least hundreds of thousands of people who could be safely returned to their communities to address deadly prison overcrowding. Instead, departments of correction are merely reshuffling the deck by moving incarcerated people from the most dangerous prisons into other prisons that then become, in turn, more crowded and unsafe. Unless policies are instituted to change course, these conditions will deteriorate yet further and cause even more needless death, disability, and pointless cruelty.
In Florida, both local jails and state prisons are bracing for a large backlog of incarcerated people awaiting transfer from overcrowded jails. The prisons to which these individuals will be transferred are grossly unprepared to receive them. In February, 30 Florida prisons were reporting critical levels of understaffing. By September, 46 prisons—about one-third of the state’s facilities—were publicly reporting dangerous understaffing problems. Because 60 percent of new hires quit within their first two years of employment, filling these gaps in properly trained staff is all but impossible.
In an official letter to the Florida State Senate last March, the secretary of corrections stated that the department simply “does not have the functional capacity to absorb the inmate population of a closed facility.” Nonetheless, in August 2021, the Florida Department of Corrections announced the closure of three prisons in response to severe staffing shortages. The incarcerated people formerly held in these prisons are being moved into other prisons where the state has already acknowledged that staffing levels are insufficient to maintain safe environments and ensure proper medical care.
If Florida officials made an effort to release thousands of people whose continued incarceration serves no defensible public interest, they could dramatically reduce the number of people in Florida’s overcrowded prisons. For example, as of July 2021, at least 5,300 people in the Florida prison system remained locked up simply because of a nonviolent drug offense. Florida officials’ choices to continue to incarcerate thousands of individuals who pose no threat to public safety is exacerbating the state’s ongoing public health and safety crisis.
Nationwide staffing problems are not likely to improve anytime soon, as hiring and retaining employees for uniquely unrewarding, demoralizing, and unsafe positions is only becoming more difficult. And although it’s true that abusive prisons and jails should be closed, these closures are not substitutes for implementing commonsense, safe, and life-saving decarceral measures.
Over nearly five decades, the United States has spent trillions of dollars in the false name of public safety to build a system of racist retribution rather than repair. To address the protracted crisis behind bars, lawmakers must now invest in well-funded programs of mass decarceration. To this end, federal, state, and local politicians and officials have a wide array of already available tools with which to reduce the number of people who are incarcerated.
Governors can utilize executive orders and commutations to release thousands of people. While state and federal systems should dramatically expand the use of clemency, decarceration isn’t just the responsibility of presidents and governors. People can be released through federal, state, and local court orders. Prosecutors can decline to file certain charges, can dismiss existing charges, and can influence whether people are detained pretrial. Prosecutors can also stop opposing the release of sick and dying people who apply for compassionate release. Local jurisdictions can stop jailing people for technical parole violations. Many county sheriffs can release people from jails and dramatically curtail the number of people they accept into their jails in the first place. City ordinances can put a stop to pointless low-level arrests for alleged misdemeanors that subject people to counterproductive short-term jail stays that multiply disadvantages while protecting no one. Prison administrators can use their discretion to award people sentencing credit to speed releases. And parole boards can shift their evaluations to data-driven public safety inquiries that would guide them to parole people on a much larger scale than most do now.
In addition, lawmakers can and must remedy unjustifiably harsh, mandatory sentencing laws that have incarcerated thousands of people for years—often decades—longer than defensible under any logic of public safety. This has resulted in large populations of elderly, sick, and disabled people in prisons. Their incarceration is extraordinarily costly but does nothing to make communities safer. With incarcerated people dying at higher rates than at any point in the last two decades, all available means must be urgently pursued to reduce this pointless, cruel incarceration of elderly people.
But even if all the aforementioned measures are implemented, successful decarceration cannot simply consist of releasing people and then abandoning them without support. Those who have been incarcerated, even just for short periods of time, typically face lasting harms and severe disadvantages in relation to securing housing, employment, and health care.
The 2012 landmark court case Unger v. Maryland offers powerful lessons for policy-makers and others considering the alternatives to mass incarceration. The case centered on remedying improper jury instructions and resulted in the possibility of release for 235 people from Maryland prisons, all of whom had served more than 30 years. What makes the Unger decision unique is that “the Ungers,” as they became known, received necessary but usually absent reentry supports, including therapy, training, and logistical help, to return to their communities. By January 2019, 193 Ungers had come home. Only five of the 188 people released under the Unger ruling had returned to prison for violating parole or a new crime. This is less than 3 percent, whereas Maryland’s overall recidivism rate is 40 percent.
Officials can safely and successfully release thousands of currently incarcerated people—including those who have committed a serious, violent crime—when there is proper public investment in proper reentry support systems. The Ungers show us the possibilities for living together without cages when we invest in systems of care instead of punishment—an investment that is essential if we are ever to achieve genuine collective safety in America.
Nearly a year into President Biden’s tenure, neither his administration nor Congress has taken steps that demonstrate any commitment to decarceration. In spite of Biden’s campaign promises to shrink the federal prison population by more than half, Biden has not offered clemency to a single person held in federal custody, and there has been a 5,000-person increase in the federal prison population since he took office. The CARES Act, passed under Donald Trump, allowed approximately 25,000 people in federal prisons–all of whom were deemed by the US government not to pose a threat to public safety–to serve their sentences at home due to the pandemic. Until just yesterday, the Biden’s administration was planning to force 4,500 of these people back to prison–a decision that would have been plainly cruel and dangerous while providing no public benefit.
Fortunately, after a months-long campaign by activists–including a lawsuit by the ACLU–the Justice Department announced that they will allow those who had been released to stay home. Given the operational crisis and rampant corruption and abuse within the Federal Bureau of Prisons, there was no excuse for the Biden administration not to do so. However, extending the release of 4,500 people is just the tip of the iceberg; nearly two million people are still behind bars, more than half of whom remain incarcerated without a justifiable public safety reason. The Biden administration must do better than to simply not reverse the minimal releases implemented under Trump.
Policy-makers must face the fact that our system of mass incarceration is not sustainable and does not benefit public health or safety—instead, it directly undermines it. To remedy the harms caused by this system, our public officials from local to federal levels must commit to ambitious projects of decarceration and repair. Until they find the political courage to do so, America’s lawmakers will continue to inflict deepening cycles of violence, disease, and death upon the public they supposedly serve.