Jurisprudence

How Joe Biden Launched a New Prison Boom

Biden gesturing with both hands as he sits with a presidential seal in front of him
President Joe Biden at the White House on Monday. Pool/CNP via Reuters Connect

The last two years were by far the deadliest inside jails and prisons on record. And as President Joe Biden’s second year in office begins, a sobering reality has already become apparent: Under his administration, rather than movement toward the end of a system of over-incarceration, we are instead witnessing the beginning of a new prison “boom.”

At the start of the pandemic, public health experts hoped for a very different policy outcome as we sounded alarms that the U.S. prison system, the largest in the world, posed a major threat to national public health. We correctly anticipated that if ambitious changes were not immediately implemented, our jails and prisons would operate as epidemic engines fueling the spread of disease that would infect millions and kill at least tens of thousands of people nationwide. Crowded carceral settings were already well known from past epidemics to function like Petri dishes for the incubation and communitywide dissemination of infectious diseases. It was thus no surprise that by September 2021, jails and prisons constituted 90 of the top 100 epidemic hot spots in America and were spreading COVID-19 well beyond their walls.

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Prison doctors, researchers, and activists saw a critical need––and an unprecedented opportunity: Could we finally make the American public understand that protecting public health and safety requires we end mass incarceration now, not in some always-deferred future? We hoped that appealing to people’s own self-interest in an urgent pandemic context might allow us to make more headway toward large-scale decarceration than had decades of appeals to morality, anti-racism, criminological evidence, and human rights. With this goal, we threw ourselves into nonstop work analyzing data, supporting legal advocacy, and testifying before officials while issuing call after call for immediate decarceration.

Those desperate appeals largely fell on deaf ears. Rather than investing in decarceration and reentry programs to protect the public as recommended by the nation’s leading health and safety experts, several states and cities have allocated federal money from the CARES Act to already-bloated police departments and to the construction of yet more jails and prisons. When petitioned to ban such misuse of these funds that were meant to provide support to struggling Americans, Biden declined to do so. Instead, in an effort to score partisan points in myopic “tough on crime” competitions with the likes of Tom Cotton, Biden has chosen to explicitly endorse the allocation of federal COVID relief funds for punishment rather than support.

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​​Just last week in his address to the U.S. Conference of Mayors, Biden again made his position very clear when he told his audience, “We shouldn’t be cutting funding for police departments. I proposed increasing funding.” Reflecting this calculated political stance, in addition to earmarking $651 million in his 2022 budget to boost local police hiring, the Biden administration­­ has repeatedly encouraged state and local governments to use the $350 billion in discretionary funds given to them by the American Rescue Plan to expand police budgets. Indeed, both Biden and his spokespeople have proudly touted his signature COVID relief bill as a major stimulus for policing in a national context already characterized by globally unparalleled police spending.

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Given Biden’s long career of misleading conflations of punishment with public safety, his campaign promises to cut the federal prison population by over half were encouraging. Unfortunately, they’ve so far proved to be hollow. During his administration, the federal prison population has grown for the first time in a decade, reversing the marginal gains made under President Donald Trump. So too has the number of people held in Immigration and Customs Enforcement detention, which has increased by 70 percent since Biden took office. At the state level, many systems have seen pandemic-era reductions to their prison populations. But these have almost all been due to haphazard logistical logjams on the front end (e.g., court closures, sentencing delays, jail-to-prison transfer stoppages, etc.) that have slowed new admissions rather than due to releases tied to decarceration policies. As a result, when pandemic-related disruptions to normal proceedings abate, prison populations will likely rise as the large backlog of pending admissions is processed.

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Refusing to decarcerate and now increasing spending on policing that will drive the shuttling of even more Americans into jails and prisons is especially perverse given the recent attention paid to the worsening conditions of confinement and the mistreatment of the incarcerated. Alongside historic protests against police brutality, the last two years featured more media coverage of horrific, unconstitutional conditions inside jails and prisons than seen since the prison uprising at Attica Correctional Facility in upstate New York 50 years ago. From spectacular cruelty at New York’s Rikers Island and abhorrent abuse at Houston’s Harris County Jail to deadly conditions in prison systems in Texas, Alabama, Florida, or Georgia, portraits of the brutality behind bars provoked near-universal condemnation. But in the short-lived ascent of these stories to the forefront of news cycles, each was treated by lawmakers as a one-off shock to America’s moral sensibilities rather than as a systemic problem requiring a systematic solution.

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What the long and ongoing history of abuse of incarcerated people makes plain is that it is the intrinsic conditions of incarceration themselves that harm the health and safety of incarcerated people, staff, and the public writ large. Even before COVID-19, researchers showed that incarceration is cutting millions of lives short, estimating that the number of years that incarceration continues to take from people even after they have “served their time” ranges from two years for each year spent locked up to about five years of life expectancy lost by age 45 alone. These harms also extend to family members of incarcerated people, who face a 2.6-year shorter life expectancy relative to peers who have not experienced their siblings, children, fathers, or mothers taken away from them by the American legal system. And, as recent studies have underlined, the health of entire communities ultimately suffers as a result of America’s high incarceration rates.

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Incarceration, which abundant data show does not in fact prevent crime or improve collective safety, increases county-level deaths from both communicable and noncommunicable diseases. For people who have been held in facilities with extremely poor health care, incarceration exacerbates chronic diseases, which in turn affects their families and neighborhoods by fueling communitywide spread of infectious diseases like influenza, HIV, and hepatitis C. This dynamic exacerbates racial and class inequalities that ultimately impose an enormous life tax on America’s most dispossessed residents. When one in three Black men are locked up during their lifetimes, men across all races face an 11 percent lifetime chance of incarceration, and over 70 million people live with criminal records, the scale of harm caused by America’s punishment system is difficult to overstate.

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The COVID-19 pandemic has turned this slow violence into an acute disaster for everyone. Millions of Americans have been sickened with COVID-19 due to jail- and prison-driven spread. A large number of the approximately 875,000 Americans who have died so far from the coronavirus would still be alive today had lawmakers followed evidence to decarcerate. It should now be obvious that, regardless of whether you care about human rights or racial justice, mass incarceration is fundamentally incompatible with national public health, public safety, and pandemic preparedness.

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It does not have to be this way. Lawmakers must enact ambitious changes rather than retreat into empty calls for reform that surreptitiously defer what America clearly needs: large-scale, safe decarceration measures coupled with well-funded reentry support systems. Congress must confront the utter absurdity of spending at least $277 billion of taxpayer dollars on policing and prison each year and $768 billion for militaristic fantasies of “national security” while the nation’s security is being ravaged by grossly deficient investments in health and welfare systems that are far more deadly than any war in American history. And while we push our representatives to pass responsible legislation, we must also demand that America’s officials––from Biden and state governors to judges, prosecutors, mayors, sheriffs, and parole boards––use their already-existing powers to release the hundreds of thousands of people whose continued confinement serves no plausible public safety rationale.

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Biden must also take immediate action to reduce the federal prison population. He has so far refused to grant a single clemency petition from among the 18,492 sitting on his desk. During an ongoing pandemic conjoined with an intensifying operational crisis inside U.S. prisons, mass clemency should be the first step of many toward a decarceral agenda that could still––if he’s bold enough to seize the opportunity––define Biden’s presidency. To turn our historic period of suffering into impetus for real change, Biden and the Democratic Party he guides must stop paying lip service to change while in practice doubling down on failed punishment policy. If he refuses to do so, Biden will continue to preside over a burgeoning prison “boom” and will prove that his long legacy as a committed advocate of “tough on crime” politics is alive and well, even if thousands of Americans die because of it.

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