The push to release inmates to protect both free and incarcerated populations from COVID-19 raises questions about who we send to jail and why.
Since the 1970s, the rate of incarceration in the United States has increased fourfold, according to the Vera Institute, an independent not-for-profit national research and policy organization in the United States that works with government and civic leaders to reform the criminal justice system.
In Iowa, the incarceration rate increased more than 250 percent between 1983 and 2015, and the state’s prisons, as well as the metropolitan county jails, regularly are over capacity.
“The problem of mass incarceration in the United States was already known to be a public health emergency,” said Alison Cox, University of Northern Iowa assistant professor of criminology. “It’s something criminal justice scholars and public health officials have pointed out again and again over the years, but COVID-19 has really brought that to the forefront.
“Health care is already abysmal in the U.S. corrections system as it is. And protecting prisoners and the correctional workers is near impossible. You cannot social distance, you cannot isolate, and sanitation in these spaces is poor. Additionally, a lot of everyday needs that we rely on — such as running water, soap and hand sanitizer — are really hard to come by in those spaces.”
For the individuals who work in these facilities, Cox continued, “there really isn’t a way to protect them, and health and paid medical leave benefits are typically not that great.”
Moreover, movement between correctional facilities and public spaces is continual. Prison staff constantly travel between facilities and their communities, and inmates are released or shifted between facilities daily.
Nearly 1.3 million people are incarcerated in state prisons the United States, according to the Prison Policy Initiative, and close to another million are being held in local jails, federal prisons and youth, immigration and military detention facilities.
And of the 631,000 people held in local jails, more than half — 470,000 — are there awaiting trial and have not been convicted of any crime.
Private prisons in the United States incarcerated 121,718 people in 2017, representing 8.2 percent of the total state and federal prison population, according to the the Sentencing Project, a Washington, D.C.-based research and advocacy organization. Since 2000, the number of people housed in private prisons has increased 39 percent.
In Iowa, more than 9,000 people were incarcerated before the pandemic hit the state in March. That number has since dropped to about 7,500, though the state’s prisons still remain 8.7 percent above capacity, according to the Iowa Department of Correction.
About 40 percent of those locked up in America’s prisons don’t actually present a public safety concern, according to a 2016 Brennan Center for Justice report. And it’s those people that U.S. prisons have scrambled to grant compassionate releases in an attempt to stem the spread of COVID-19.
Many law enforcement agencies have turned to issuing citations and summons in place of arresting those accused of minor offenses.
Could those approaches open the door for more significant criminal justice reform?
“I think this is one of the greatest opportunities for change, and not just in the criminal justice system,” said state Rep. Ras Smith, D-Waterloo.
“There’s a natural evolution that’s taking place, whether that be in education, social justice or criminal justice, small business reform, I think in all aspects of our communities and our society — and more broadly as a country,” he said. “We’re finding that our structures and the infrastructure in which we live and govern are archaic, and not really designed to adequately meet the needs of the people.”
The question, Smith said, is where do we go from here?
Experts who study the criminal justice system advocate a shift from our current punitive system to one that takes more of a humane, restorative and individualized approach.
“Right now, our criminal justice system is kind of a conveyor belt,” Cox said. “It’s very generalized, and we’re just doing it, going through the motions, because this is what we know.
“And one way to kind of push back on that is to think about what are the other options that we can do instead — because they’re there. And I think that if we kind of just start at least thinking in that way, knowing that we can take different steps, I think we would be pretty pleasantly surprised with what those outcomes could bring.
“They might be more positive and more empathetic and more humane than simply arresting somebody, throwing somebody in jail and just going through the motions because that’s what we’re used to.”
In the pandemic’s early days, the American Civil Liberties Union and other organizations called for “decarceration” in state prisons and county jails. Since then, officials have reduced Iowa’s prison population by 10 percent, with many of the larger county jails reporting reductions between 25 percent and 50 percent.
But in the scope of criminal justice reform, the recent changes are really just a Band-Aid, Smith said.
“One area that we really need to focus on is sentencing reform and mandatory minimums,” he said.
Mandatory minimum sentencing laws force a judge to hand down a minimum prison sentence based on the charges a prosecutor brings against a defendant that result in a conviction.
Mandatory minimums are not uncommon, and opponents believe they tie judges’ hands and prevent them from taking into account the circumstances of a crime and the characteristics of the individual defendant when imposing a sentence.
Some also argue that mandatory minimums, when it comes to drug offenses, unfairly target Black defendants by imposing higher penalties for smaller quantities of certain drugs. For example, a minimum prison sentence of five years is required under the Anti-Drug Abuse Act 1986 for 500 grams of cocaine — but only five grams of crack cocaine.
“Many of the people we send to jail for minor, non-violent offenses don’t need to go to jail,” Smith said. “From looking at data, we see much better outcomes for individuals when we provide them with the services they need.
“Prison is not the place for people who suffer from mental illness, and it’s not the place for people who are committing acts out of desperation and necessity to feed their families, and right now there is no other place to put them because the services they need are not properly funded.”
The practice of re-incarcerating people for technical probation or parole violations needs to stop, Smith said, and the state needs to better invest in re-entry services to help those released from prison establish themselves in the community and avoid reoffending.
In addition, Cox said incremental change on every level of the justice system — starting with police — could make a tremendous impact on prison populations in the United States.
“The police are the gatekeepers to the criminal justice system,” she said. “They are the ones that respond to crime, and they’re going to be the ones that have the discretion to choose to arrest somebody and start that person’s experience through the criminal justice process. It’s important that we ask, does that person need to be arrested? Do they need to go to jail? Is there a better, safer and more humane way we can handle the situation?”
Cox contended that sentencing reforms — including mandatory minimums, pretrial reforms, reassessing the penalties for misdemeanor crimes and doing away with the cash bond system — also are vital aspects of the criminal justice system that should be reconsidered.
“How we think about crime — including the policies that we generate to control and prevent it — has resulted in an overreliance on incarceration for the past 40 years,” Cox said. “While we have now come to recognize this overreliance as mass incarceration, we are still reeling from these uninformed — and frankly, hurtful — policies.”
State Rep. Gary Worthan, R-Storm Lake. a member of the Iowa House Public Safety Committee, said the state is “already in the process of looking at some of these questions. There’s been a large amount of action taken and a fair amount of discussion among the people that I work with, and I think we’re going to see a push from certain legislators in the next session to take a hard look at what criminal justice reforms we could initiate.”
When looking at the structure of the criminal justice system, Cox said there are two common models — the crime-control model and the due-process model. The crime-control model is what more closely resembles our criminal justice system today, she said.
“Both have advantages and disadvantages,” she said. “With the due-process model, it is more individualized — you have the time to really look at the situation, to argue for civil rights protections. But at the same time, that takes a lot of a lot of time. So it’s a very slow process.”
The crime-control model, she continued, “is kind of the opposite, where it’s not individualized. It is very much more of a conveyor belt. And you just push people through based on the crime that they did.
“And so the difficulty is how do we find that balance in our current system because we really can’t have a complete due-process model, and we really can’t have a complete crime- control model. There’s going to be give and take on both sides.
“And that, I think, will really depend on the city and the county you’re in, the law enforcement agency, the court and how they work together.”
Long before the pandemic hit, the ACLU released a road map for all 50 states that it said could cut the prison population by as much as 50 percent.
The Smart Justice 50-State Blueprints project calls for an end to mandatory minimum sentences and three-strikes laws and urges officials to find an alternative to jailing people with substance abuse and mental health issues — ideally, treatment.
In its plan for Iowa, the ACLU laid out the following steps:
• Decriminalize drug possession across the state.
• Expand social services and treatment for mental health and substance-use needs.
• Reform the pretrial system to enhance constitutional protections, and eradicate wealth-based discrimination by restricting the use of cash bail.
• Eliminate crack and powder cocaine sentencing disparities.
• Enact parole reform to expand access to early release.
“If Iowa were to follow these
and other reforms outlined in this Smart Justice 50-State Blueprint,
5,428 fewer people would be in prison in Iowa by 2025, saving over
$360 million dollars that could be invested in schools, services and other resources that would strengthen communities,” the organization said.
Some might call this a tall order, but Daniel Zeno, policy and advocacy director for the ACLU in Iowa, said the pandemic has shown that change is possible.
Zeno advocates for the funding of social, substance abuse and mental health services as a way to stem the flow of people entering or re-entering the criminal justice system, adding that access to such services would help whole communities.
“What we’ve seen since mid-March … is what a lot of groups have been saying for a while — that criminal justice reform is possible, that it’s possible to address the issues of substance abuse and mental health and a whole range of other issues without using the criminal justice system,” he said.
“In early March, before we really saw what this pandemic was capable of, the Iowa state prisons were over capacity by 20 percent, and that in itself was a problem. Over the course of four months or so, we have managed to reduce that by more than half.
“That shows us that change is possible, and we’ve taken some positive steps, but we still have a long way to go.”
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