In one federal courtroom, a defense lawyer argued for a client’s release before trial because he was an insulin-dependent diabetic, which, the Centers for Disease Control and Prevention says, increased his risk of infection; the judge refused, saying, as the lawyer told me, the CDC studies must be taken with a “grain of salt,” since it is a “novel” virus. The lawyer persisted: Given the fatality rate of COVID-19, the court should err on the side of caution; none of the defendant’s charges warranted death. To this judge, “erring on the side of caution” meant prison; release denied. While there may have been reasons for the decision, the judge’s comment has troubling echoes of President Trump’s disparagement of expertise. Worse, it shows a stunning lack of empathy.
In a second federal courtroom, another judge refused pre\trial release for the opposite reason. Defense arguments about COVID-19 were “systemic,” and the defendant had not shown he was especially vulnerable. Of course COVID-19 arguments are systemic; they are about a risk so severe that it has upended this country. As Columbia University scholars noted in an April 21 letter to Governor Andrew Cuomo of New York, with “medically vulnerable and forcibly proximate” prisoners, those risks require that the governor systematically release prisoners to ease pressures on space and staff.
Other federal prosecutors trivialize the problem: “Only one” staff member in Plymouth tested positive, and no inmates, said one prosecutor. (The prosecutor since updated that count in a status report to the court.) The number of positive results might be significant if every prisoner were tested (they are not), or if testing meant more than taking the inmate’s temperature, as has been reported in some institutions. The Department of Justice has taken the position that defendants are better off in prison, as if the government were an onlooker with no affirmative obligation to find a safe place for released prisoners. Massachusetts district attorneys, except for Suffolk, Middlesex, Northwestern, and Berkshire counties, even refused to work with the special master (the law firm that the state Supreme Judicial Court appointed to deal with COVID-19 for both pretrial and convicted individuals) until the court ordered them to cooperate.
And Governor Charlie Baker? He has the power to reduce prison populations immediately, as did governors in Ohio and California. He couldn’t be more clear: He doesn’t “buy” the claim that this pandemic requires prisoner releases, even as COVID-19 tears through the Massachusetts prison system.
These are the habits of mass incarceration, the reflexive decisions that led to the imprisonment of more citizens than in any other Western country. We got used to treating people as categories, not human beings: This drug quantity meant this mandatory minimum sentence, regardless of how addicted or impaired the defendant was. We got used to reducing offenders to their criminal record, no matter how trivial. We got used to detaining people accused of a crime, even when few federal defendants were rearrested on pretrial release and most appeared for trial. Imprisonment for federal crime, which had been the exception before the mid-1980s, was now the default. An extraordinary punitiveness afflicted legislatures, judges, prosecutors, probation officers, the public. Worse, prisoners, disproportionately Black, seemed invisible until politicians realized the cost of mass incarceration — not just financial, but human, including in exacerbating economic inequality as well as the impact on the children and families of the incarcerated. True, criminal justice reform reduced some sentences and created alternatives to incarceration for others. But these changes are so modest that in 2017, while the adult violent crime rate in the United States was 66 percent lower than 20 years earlier, the incarceration rate was 32 percent higher.
That was then. This is now. Now we face a crisis unlike any other. Now we must look hard at who we lock up and why. Now imprisonment risks death for prisoners who cannot socially distance, who suffer from chronic illnesses associated with poverty: asthma, heart disease, and diabetes — all on the CDC COVID-19 risk list. Now we must concede that prison health care, substandard in the best of times, is unprepared for this.
Public safety needs are different too. Public safety is compromised when COVID-19 infestations spill into communities where prison staff live. The crime rate — a rate much lower than it had been before the pandemic— also points to release. Elderly and ill prisoners, even those convicted of violent crimes, pose the least risk. Their chances of reoffending on release are lower than their chances of death inside the walls.
Many judges, federal and state, and many prosecutors and governors, have recognized that this is a humanitarian crisis. To the others, the pain of the imprisoned, their blinding fear of the infected surface or the unmasked sneeze, is irrelevant. The habits of mass incarceration die hard.
Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.