Jurisprudence

Other Countries’ Courts Are Treating the Prison Pandemic as A Real Emergency

U.S. prisons’ COVID-19 response lags behind Tunisia and Palestine.

A woman plays a horn while taking part in a vigil outside Queensboro Correctional Facility in New York City.
A vigil outside Queensboro Correctional Facility on April 23 in New York City. Johannes Eisele/Getty Images

The United States is addicted to punishment, and it just might kill us. Coronavirus outbreaks in jails and prisons not only threaten one of the most vulnerable populations in the country, but also their lawyers, prison personnel, their families, and everyone else. While several countries have taken progressive, nationally coordinated action to reduce prison populations and prevent widespread infection, institutions across the U.S. continue to prioritize punishment over public health. As a result, some of the most severe COVID-19 outbreaks are occurring in U.S. jails and prisons as well as the communities that house them.

Other countries have recognized the danger and taken far more sweeping action. I work with public defenders around the world. My colleagues constantly challenge my U.S.-based perspective and force me to broaden my understanding of justice.

In Palestine, where the government brought the country to a screeching halt to contain COVID-19, the courts remain open for emergency hearings. “Emergency” in this context means that courts are occupied almost exclusively with hearings devoted to getting people released from jail and prison. Detention centers are on lockdown so lawyers cannot visit their clients, but authorities have made sure that people in detention are able to talk to their lawyers by phone. On March 23, Palestine’s president also took swift action to order the release of everyone who has served at least half of their prison sentence (with the exception of some convicted of major offenses).

In Tunisia, courts also remain open for emergency matters. The courts have had difficulty reliably transporting detainees to court due to COVID-19, so defense lawyers and prosecutors worked together and successfully lobbied judges to grant release motions in absentia. Some prosecutors are even appearing in court to argue for release on behalf of unrepresented defendants because they understand that releasing people from custody is in the public interest. In March, the president pardoned more than 1,400 people.

Unfortunately, the national response that most resembles our own is that of Iran. Iran had a pre-pandemic prison population of about 189,500 in a system of facilities designed to hold fewer than 150,000, and the government failed to take meaningful action to decarcerate upon the arrival of COVID-19. Only after thousands of infections and hundreds of deaths were reported in prisons did officials take the situation seriously and release nearly 100,000 people—far more than have been released in the U.S.—but the damage was already done.

U.S. leaders could follow these countries’ lead and take any number of steps right now to reduce jail and prison populations. They could halt the arrest and prosecution of low-level offenses, expedite and expand pretrial release, and aggressively reconsider the cases of people already sentenced. Governments could also be considering whole categories of detainees for release, such as those who were arrested for not checking in with a probation officer or failing to pay a fine. Instead, cities and states around the country continue to take actions that range from haphazard to directly harmful.

In Douglas County, Nebraska, jury trials have been suspended and lawyer visits have been banned so the only way for a person in pretrial detention to see a judge is to plead guilty without legal advice. Before being ordered to stop by a judge, prosecutors in Adams County, Colorado, attempted to proceed with a lengthy death penalty trial. Despite concerns that jurors would be at risk of infection, prosecutors pushed for a trial in an attempt to secure the ultimate punishment before Colorado’s new death penalty repeal bill takes effect.

There are leaders in the U.S. who have taken positive steps. Authorities have reduced the jail population in Hennepin County, Minnesota, by 44 percent. New Jersey’s chief justice ordered the release of nearly 1,000 people from county jails, and California is granting early release to 3,500 people. These disparate responses, however, are not enough. We need to make a decision as a country that we care more about the health of our communities than about the false sense of safety we derive from mass incarceration.

This crisis exposes a fundamental problem with our national mindset: We are incapable of visualizing public safety without incarceration. The proposition that the carceral system makes us safer was dubious at the best of times. Now, the calculus has changed. Overcrowded prisons and jails present imminent danger to the people inside them and the communities in which they are situated. Still, we are struggling to imagine a world where we might reduce the severity of criminal punishment, even to save thousands of lives.