Locked Up and Locked Out: Coronavirus and the Criminal Justice System

Extraordinary times call for extraordinary measures. As the United States of America undertakes unprecedented measures to try and slow the spread of COVID-19, the Coronavirus, Americans have seen severe economic downturn, stock markets plummeting, small businesses shuttering, conferences, sporting events, trade shows, and religious services canceled. We are under social distancing guidelines and stay home orders implemented at state and federal levels. Retailers open under business necessity exemptions, have bright blue, red, and other colored tape designating six feet distances for customer queues. Americans are enduring hardship and inconvenience in a unified effort to combat the spread of Coronavirus.

While Americans at-liberty are enduring inconvenience and existing in a climate of fear and apprehension, communities of incarcerated persons who cannot separate, must be hyper anxious and emotionally distraught. This constitutes potentially serious human rights issues.

The American criminal justice system holds almost 2.3 million people in 1,833 state prisons; 110 federal prisons; 1,772 juvenile correctional facilities; 3,134 local jails; as well as in military prisons; civil commitment centers; state psychiatric hospitals; and prisons in the U.S. territories. Mass Incarcerations: The Whole Pie 2020, Sawyer and Wagner (March 24, 2020). Each of these institutions has had to develop protocols, policies, and guidelines to deal with the prospect of the contagion of Coronavirus in confined populations.
The Center for Disease Control and Prevention has published broad guidelines for correctional and detention facilities.

1. Prevention Education and Hygiene Measures
2. Maintain Reasonably Sanitary Conditions
3. Identify and Take Extra Precautions for High-Risk Patients
4. Sick Patients may be Quarantined
5. Provide Treatment

The legal obligations of jails and prisons are governed by the Eighth Amendment of the U.S. Constitution, and international law compels humane treatment of detainees and prisoners.

While states have, no doubt, fashioned unique and different responses, the adequacy of which will likely be tested later. I will describe some highlights from Tennessee’s response.

On March 13, 2020, the Chief Justice and Justices of the Supreme Court entered order no. ADM2020-00428 declaring “a state of emergency for the Judicial Branch, suspending all “in person [court] proceedings” with certain enumerated exceptions until March 31, later extended through the end of April 2020. The Chief Justice ordered local judges to come up with plans for reducing jail populations in an effort to slow the spread of COVID-19. Chief Justice Bivins noted, “Reduction in local jail populations is a critical component in controlling the spread of COVID-19. There are low-risk, non-violent offenders who can safely be released and supervised by other means.” The Chief Justice urged judges, law enforcement, and attorneys to work together to create appropriate, effective action plans to achieve the objective. The Shelby County D.A., Amy Weirich reported that in working with judges, defense attorneys, and law enforcement, a plan has been developed to reduce jail populations. As of March 27, 2020, more than 700 inmates had already been released or had charges dismissed. Over the past week, Weirich’s office sent letters to hundreds of out-of-custody defendants dismissing their pending cases. The prosecutors are reviewing cases to evaluate ways to further reduce jail populations while protecting public health and safety and protecting the human rights of incarcerated populations.

To further contain the spread of Coronavirus and tamp down jail populations, police are encouraged to issue summons in appropriate cases, and citizens are encouraged to call the police department to make telephone reports. The policing protocols represent efforts to manage public and officer health and safety while keeping officers safe as they protect and serve.

The Shelby County Sherriff’s Department has been using heightened screening procedures for detainees during this era of Coronavirus. The department also implemented a pre-screening protocol for employees and vendors prior to admission to the facility. The jail has curtailed jail visits and developed telephone alternative ways, such as, burner cell phones and other technologies to facilitate confidential attorney client communications.

The Coronavirus has stressed an already stressful situation in criminal justice. As emergency measures are implemented to balance public health and safety concerns and insure due process and the constitutional rights of inmates, it may well provide the impetus for all parties to seriously consider why we are incarcerating so many people, and the role that race and poverty play in mass incarceration. This is an issue that affects every stakeholder in the criminal justice system, and that means all of us!

Honorable Bernice B. Donald
President, U.S. Commission, UIA, 
Former Chair, ABA Criminal Justice System
Memphis, TN, USA