Indiana Attorney General Curtis Hill recently chided  those of us who have argued that states should reduce their prison populations to prevent the spread of the coronavirus. He claimed that the move to release the most vulnerable from prison was just “the ACLU” imploring “government at all levels to release as many inmates as possible back onto our streets.”
We aren’t members of the ACLU; we are a former federal prosecutor and a former federal prisoner-turned-law professor. Unlike Hill, we study the criminal justice system as a whole to determine the best ways to balance public safety against the deep social and fiscal costs of incarceration. And we strongly agree that releasing vulnerable prisoners is not just good public health policy but good criminal justice policy.
Hill insists that to prevent the spread of coronavirus in prisons, states should “simply follow the protocols recommended by the U.S. Centers for Disease Control and Prevention.” But social distancing is not possible within a prison, where most prisoners are held in overcrowded, poorly ventilated dorms, sleeping in closely packed bunk beds, and sharing facilities of all kinds. These are ideal conditions for viral spread, especially considering that prisoners everywhere have significantly higher rates  of HIV, diabetes, asthma, hepatitis, and other immunity-compromising conditions.
Need proof that you can’t social distance in a prison? In neighboring Ohio, two state prisons have become the single largest clusters  of the coronavirus in the country. In Marion Correctional Institution, more than 80% of prisoners have tested positive for the coronavirus, and, as of April 27, two prison staff and 19 prisoners statewide have died. Ohio has tested about 5,400 of its approximately 49,000 prisoners, and a staggering 72% of those tests came back positive . The only reason Indiana hasn’t reported similar numbers is because the state hasn’t done similarly substantial testing in prisons.
We suspect that Hill’s reluctance to release the most vulnerable from Indiana prisons is based on a belief that the certainty of spread within prisons isn’t worth the risk of releasing someone who might reoffend and that exposure to the coronavirus is simply an unfortunate byproduct of criminal punishment. Yet we ought to care about the health of the 2.3 million people held in prisons and jails. No matter what crimes they committed, they are human beings, often from difficult backgrounds, and contracting a terrible disease was not part of their sentence.
But it is not just prisoners who are at risk from the dangers posed by coronavirus infections in our prisons: The spread of the coronavirus inside prisons often ricochets back into the community.
Ohio media have reported that the outbreak in Marion is now spreading  to the local community, where the sparsely populated surrounding counties have an infection rate as high as Cleveland or Columbus. Already, Indiana is reporting six inmate and two staff deaths  from the coronavirus, not unlike the numbers Ohio was reporting just a few weeks ago. We expect a similar progression.
Nor is it true that reducing the prison population means a reduction in public safety. For example, 35% of female and 23% of male prisoners in Indiana are serving time for felony 5 and 6 offenses , which are eligible to be converted into misdemeanors or for probation. These crimes include theft, petty check fraud, drug possession, and criminal nuisance. Are we supposed to believe that none of these people can be safely released?
We know that about 20% of all inmates nationwide are older than 55 and that the elderly are particularly unlikely to reoffend . Does Hill really believe that not a single elderly Indiana prisoner can be safely released?
Many people serving time in Indiana prisons are within months of release. They are coming back to our communities soon enough. Why squeeze every possible minute of incarceration out of them when doing so endangers the public health of prison staff and surrounding communities?
Mass incarceration has now become a direct threat to public health. If Hill really cared about public health and safety, he would be working to reduce that danger, not insisting that all is well and that nothing in our criminal justice system needs to change.
- “chided”: https://www.foxnews.com/opinion/coronavirus-inmate-release-aclu-bad-idea-curtis-hill
- “significantly higher rates”: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4491502/
- “single largest clusters”: https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html
- “positive”: https://www.drc.ohio.gov/Portals/0/DRC%20COVID-19%20Information%2004-27-2020%201614.pdf
- “spreading”: https://www.dispatch.com/news/20200425/marion-prisonrsquos-virus-outbreak-seeps-into-public
- “deaths”: https://www.in.gov/idoc/3780.htm
- “felony 5 and 6 offenses”: https://www.in.gov/idoc/files/0220%20OffenderPopulation.pdf
- “particularly unlikely to reoffend”: https://www.themarshallproject.org/2015/03/20/too-old-to-commit-crime