Jurisprudence

It’s Time to Start Releasing Some Prisoners With Violent Records

Two men hold a sign that says "Release prisoners and detainees now. No more COVID deaths behind bars."
Protesters outside Chicago City Hall on Thursday. Kamil Krzaczynski/Getty Images

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Prisons and jails are fast becoming an epicenter of the COVID-19 pandemic. Last week, for instance, the New York Times reported that Cook County jail was “now the nation’s largest-known source of coronavirus infections.” After far too much lost time, some governors and criminal justice officials are finally trying to mitigate the damage by releasing inmates or transferring them to home confinement.

To succeed, these steps must extend to prisoners with violent records. This should be obvious based on sheer numbers. People with violent convictions make up a majority of the total state prison population. Because sentences for violent crimes are longer, they make up an even larger percentage of the older detainees most vulnerable to COVID-19: about two out of every three prisoners over age 55.

So far, this reality is being ignored. Efforts to move people out of prisons and jails have mainly focused on the lowest-hanging fruit: those detained for inability to pay bail, technical parole violations, minor misdemeanors, and the like. Almost all these measures have excluded people convicted of violent crimes.

Many prepandemic criminal justice reforms have also focused on nonviolent offenders only, so we shouldn’t be surprised. For many, people with violent convictions seem dangerous, and the idea of granting them any kind of relief is simply anathema.

But how dangerous is it to release prisoners with violent records? We recently carried out an empirical study using post-release crime data on hundreds of thousands of such prisoners. We found that it is much less dangerous than you probably think. And during this pandemic, we can add, it seems doubtless much less dangerous than keeping them behind bars.

Our study found that among those released after serving a sentence for a violent crime, about one of every 10 releasees was sent back to prison for any new crime within the next three years. Only one of every 20 had another violent crime in three years. In fact, re-offense rates have been consistently shown to be lower for people released after serving sentences for violent crimes than those released for nonviolent crimes.

Crime rates are even lower if you look at older prisoners—the ones most seriously threatened by COVID-19. We looked at more than 7,000 individuals over age 55 who had served at least five years in state prisons for a violent offense. Fewer than 1 percent of such individuals were re-incarcerated for any new crime in the three years after release, and fewer than 0.5 percent for another violent crime.

Our study was bigger and more recent than most, but our findings are consistent with the patterns we found in a comprehensive review of the literature. Moreover, all those low re-offense rates were for normal releases from prison into society. But “releases” now need not simply mean flinging open the prison gates indiscriminately. It could mean temporary transfers to home confinement for the duration of the emergency. Protective measures like electronic monitors are also available.

For most, such approaches should reduce crime further yet. (Crime is down overall since lockdown measures took effect.) Domestic violence cases are a potential exception, but such individuals could be released to homes other than those of their victims. Prisons will also have to work to identify safe housing options for those who might otherwise be rendered homeless.

Of course, at many prisons there could be some individuals who really are so dangerous that they cannot be safely released, even to home confinement. But the data tell us that such cases are likely to be relatively few, and officials should be required to identify them based on clear evidence. It certainly shouldn’t be assumed to be true of all who have violent convictions. And once as many people as possible have been removed from facilities, it will be easier to practice social distancing among those who remain.

Are crime rates among those released likely to be zero? No—but they should be close to it. The stakes of doing nothing, though, have never been higher. Categorically refusing to remove violent offenders from these virus hotbeds does not protect public safety. It endangers it.

Our crowded prisons and jails cannot realistically implement social distancing, and indeed face challenges with basic hygiene (for instance, bans on sanitizer). So COVID-19 has and will continue to rapidly spread behind bars. This is a huge risk to the more than 2 million people incarcerated in the United States, plus hundreds of thousands of staff.

And COVID behind bars threatens everyone outside too. Staff—and some detainees—come and go daily. Some will bring COVID in with them, and after it has spread, much larger numbers will take it out. Plus, sick prisoners will have to be moved to local hospitals, competing for scarce resources.

Prisons and jails are like concerts, conferences, and cruise ships: places where crowds in confined spaces can spread the virus to many, many people fast. But unlike these other sites, they won’t be shut down. So COVID outbreaks behind bars threaten our entire society’s ability to control the pandemic and return to normal life.

No prisoner should suddenly face a death sentence instead of whatever penalty a court gave them because state, local, and federal officials refuse to acknowledge these realities. Nor is there any justification for imposing this risk on prison guards, or on their families, or on the public at large.

While some systems have started releasing people, violent-offense exclusions amount to an exception that swallows the rule. For example, on March 26, Attorney General William Barr issued a memo urging federal prisons to transfer older and medically vulnerable prisoners to home confinement—but it was limited to those with nonviolent offenses who were deemed low-risk.

The result? By April 3, reportedly, only 552 prisoners had been transferred home pursuant to Barr’s memo. That’s out of about 175,000 people in Federal Bureau of Prisons custody. Unsurprisingly, COVID-19 has continued to spread through the system. In light of this reality, Barr issued new guidance getting rid of the restrictions he had imposed on home transfers. That’s an important step, but it came late, and the new memo still emphasizes the need to avoid too-liberal releases that could lead to “violence or heinous sex offenses.” And overwhelmingly, the states—which hold the vast majority of American prisoners—have, if anything, done less to protect those with violent records.

The COVID-19 situation in prisons is a moral test that, so far, our society is failing. Even when our own safety is at stake, we make knee-jerk assumptions about people who once committed a violent crime: that they cannot ever reform. These assumptions are not borne out by data. And right now, they are blinding us to what is needed to protect all of us.