Prosecutorial Discretion: The Prosecutor’s Role in Curbing Infections in Prisons

Jails and prisons are breeding grounds for infections like Covid-19, and it’s only getting worse.

Of the largest Covid-19 related outbreak clusters, prisons account for seven of the top 10. One Ohio prison is the single largest infection site in the country with more than 2,000 confirmed cases. Rikers Island Prison Complex in New York City has a nearly 9% infection rate—more than 16 times the national rate. This problem doesn’t stay contained to the prison walls. It affects people with loved ones inside, as well as correctional staff and their families.  

The rapid infection in jails and prisons demands immediate action. This isn’t an “us versus them,” a “red versus blue,” or a “defense versus prosecution” issue. We, a former public defender and former prosecutor, strongly believe that the spread of Covid-19 in jails and prisons threatens our entire community.

Medical experts and the empirical data are clear that minimizing harm and loss of life right now require dramatically reducing jail and prison populations. State and local prosecutors have a great deal of control in this. Prosecutors have the ability to limit the types of crimes charged, suggest that police issue summonses instead of making arrests, eliminate incarceration on technical probation and parole violations and not request pre-trial cash bail.

Many prosecutors across the country are taking such measures. For example, local prosecutors in St. Paul, Minnesota reduced the number of people held in pretrial detention by 50%. Similarly, local prosecutors in Charlottesville, Virginia agreed to release more than 25% of individuals in custody, resulting in its lowest jail population in 20 years. Even conservative jurisdictions like Morgan County, Alabama—which voted for President Trump by a more than three-to-one margin—released more than 100 people from custody prior to having any known Covid-19 cases.

Another way to reduce the inmate population is to consider early release for incarcerated individuals who are particularly vulnerable to the coronavirus and not a public safety risk. This includes the elderly and people with underlying medical conditions who are near to release because of time served, parole and good behavior. Research shows that these measures could also include individuals who committed decades-old violent crimes, since many of them have “aged out” of crime and don’t present a public safety risk but rather face severe health risks themselves inside.

Unlike jails, prosecutors aren’t largely in charge of prison release decisions, but they still hold considerable sway with government officials that ultimately can make those decisions and with the public. In New Jersey, prosecutors and defense lawyers entered into an agreement to release about 700 inmates serving sentences in county jails, although advocates argue the state has been too slow with temporary furloughs for those in state prison. 

The vast number of people who are released using similar guidelines to what we discussed earlier don’t pose a societal threat. Yet, many prosecutors still resist the idea of reducing the number of incarcerated people due to fears around potential reoffending that leads to increased crime. For example, New York City officials point to the rearrests of 3% of released individuals as justification for returning people to jail rather than focusing on the 97% who didn’t reoffend. This also ignores the body of research that shows that our historically oversized incarceration rates don't make us safer. More to the point, those objecting to releasing people ignore the very present, lethal threat of Covid-19—seeming to think they can continue to treat prison and jail settings as separate from the community. One recent study concluded that, even if we continue to practice social distancing and follow related public health guidance, projected deaths will still increase by more than 100,000 if jail populations aren’t significantly reduced.  The scientific certainty of more than 100,000 deaths should outweigh fear mongering as these releases will save lives by reducing coronavirus community spread and, in all likelihood, not result in a spike of criminal activity. 

For those who must remain incarcerated, prosecutors should advocate for safe conditions inside jails and prisons. This includes keeping facilities sanitary by ensuring access to clean water and soap for hand washing. Relatedly, prosecutors should advocate that prisoners aren’t placed in facility-wide lockdowns or solitary confinement as a means to prevent suspected or confirmed cases of infection. Numerous jurisdictions have tried this, but the adverse mental health effects of solitary confinement are significant and well-documented.  Its use in this instance also raises due process concerns and will likely result in less reporting of symptoms. Therefore, there needs to be adequate medical care and attention for those who are sick in correctional facilities.

Similarly, the mental health of inmates should also be considered. At a time when many of us are sustaining ourselves by connecting with friends and family on Zoom, Skype, or Facebook, it seems obvious that we shouldn’t require those with the least access to others to continue to pay exorbitant phone call fees to talk with their loved ones.

These measures shouldn’t be limited to our current crisis. This should be the start of the new normal in the justice system. Over incarceration brings with it immense fiscal and human costs.  Incarcerating fewer people for shorter periods is consistent with ensuring public safety and executing justice. Recognizing this and building a society with a smaller criminal system and more social supports to address the poverty, mental illness and substance abuse, underlying much of crime, would be a silver lining of this difficult time. And prosecutors should be at the forefront of these changes.