The COVID-19 pandemic is having many devastating effects. One of the starker ones is on our custodial institutions, highlighting their dreadful overcrowding. As of 2015, 2.3 million Americans were serving time behind bars: 1.4 million in state prisons, 744,600 in local jails and 200,000 in federal prison. The numbers today are no better. These figures come from Greg Berman and Julian Adler’s, Start Here: A Road Map to Reducing Mass Incarceration 19 (2018). Start Here and Rachel Elise Barkow’s Prisoners of Politics: Breaking The Cycle of Mass Incarceration (2019) both paint a dire picture of our society but offer valuable suggestions for change.

Start Here quotes President Barack Obama on the need for criminal justice reform:

Surely we can agree it’s a good thing that for the first time in 40 years, the crime rate and the incarceration rate have come down together, and use that as a starting point for Democrats and Republicans, community leaders and law enforcement, to reform America’s criminal justice system so that it serves us all.
(Start Here at 19.)

Democrats and Republicans alike have recognized that something needs to be done. Indeed, our current president signed the First Step Act into law in 2018, which seeks to reform the federal criminal justice system by, among other things, removing mandatory sentencing minimums for nonviolent drug offenses, including applying those changes retroactively to those already sentenced. Sadly, the First Step Act has not been followed by a second or third step.

Start Here points out that the United States, “locks up more of its citizens than any other country on earth. There are more people behind bars in the United States than the incarcerated populations in India and China combined.” (Start Here at 21.) This massive level of incarceration has led to dangerous prison overcrowding and set the stage for the devastation of the pandemic.

Leading public health officials warned months ago that unless courts act immediately, the “epicenter of the pandemic will be jails and prisons.”1 As the CDC explained, correctional facilities, “present[ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.”2 “Prisons are epicenters for infectious diseases because of the higher background prevalence of infection, the higher levels of risk factors for infection, the unavoidable close contact in often overcrowded, poorly ventilated, and unsanitary facilities, and the poor access to healthcare services relative to that in community settings. Infections can be transmitted between prisoners, staff and visitors, between prisons through transfers and staff cross-deployment, and to and from the community. As such, prisons and other custodial settings are an integral part of the public health response to coronavirus disease.”3 The pandemic has borne out these dire predictions: People in prison in the U.S. are 550% more likely to contract the virus than the general population, and 300% more likely to die from it.4 The practical reality is that prisons and jails are in fact epicenters of the pandemic.

These include our own San Quentin State Prison, which experienced a massive outbreak of the virus as a result of the May 30 transfer of 121 prisoners there from the California Institution for Men (CIM).5 CIM has been an early hotbed of virus cases in the state prison system, with 509 cases and 16 deaths.6 Before the transfer, San Quentin had zero cases. The first San Quentin inmate tested positive on June 1, just two days after the transfer. Remarkably, the transferred prisoners had not been tested for two weeks up to a month before the transfer.7

During a June 19 Case Management Conference in the Plata v. Newsom COVID-19 litigation against CDCR—when the positive case count at San Quentin was nearing 150—Judge Tigar of the Northern District Federal Court called the fateful transfer a “significant failure of policy and planning” by prison officials and said, “Some people made a bad mistake.”8

Since June 1, San Quentin’s number of confirmed cases rose from zero to over 1,000 in just one month:

  • 48 active cases, 2 weeks later (June 14);
  • 152 cases, 6 days after that (June 20);
  • 338 cases, 2 days later (June 22);
  • 456 cases, in another 2 days (June 24);
  • 539 cases, 2 days later (June 26);
  • 1106 cases, 4 days later (June 30);
  • 1381 cases, 3 days later (July 3);
  • 1899 cases, 11 days later (July 14).

Note that the number of cases more than doubled in the four days from June 26 to June 30. Put another way, the rate of infection per 1000 in the U.S. is 7.0, in California 4.7, in CDCR 47.1 and in San Quentin 463.9.10 As of July 9, 31 prisoners had died of COVID-19 in California state prisons, including 11 at CIM and at least 7 men at San Quentin. By August 28, a total of 26 San Quentin inmates and at least one correctional Sergeant had died. The explosion of COVID-19 infections in our prisons turned the pressing need for criminal justice reform into a public health emergency.

Start Here addresses a number of criminal justice reform theories and ideas. Its discussion of the racial disparities of the criminal justice system and the risks of “data” based risk-assessment tools is now relevant to the headlines virtually every single day. It is a good starting point for understanding ways to end the crisis of mass incarceration.

Prisoners of Politics addresses the reality that our current criminal justice system fails to prevent recidivism and creates a permanent class of criminalized individuals who have no alternative but to return to a life of crime upon their release from incarceration. Barkow makes the case that tough on crime political campaigns have led to nonsensical sentencing laws, creating harsher and longer periods of incarceration while ignoring rehabilitation. She eloquently discusses how media coverage and politicians looking for votes have shifted criminal justice policy away from professionals and into the domain of electoral politics:

Thus the shift to mass incarceration is directly linked to the shift from leaving judgments to professionals to allowing the masses to set policies directly. Both sides of the political spectrum supported that change. Conservative politicians decried the system’s inability to address the spiking rates of crime throughout the United States and criticized existing laws as too lenient. Liberal politicians disliked the existing model because it worked to the disadvantage of poor people and people of color. Everyone seemed to lose faith in the idea of rehabilitation, and no one seemed to trust experts to make criminal justice decisions. The era of mass incarceration was born, unleashing forces that make its demise in any significant respect unlikely under the existing institutional architecture that created it.
(Prisoners of Politics at 104.)

Both books are worth reading for insight and inspiration for effective ways to reform the criminal justice system and eradicate mass incarceration. The pandemic has made taking action more urgent than ever. Mass incarceration is not feasible economically, societally, or morally. Our society has a moral obligation to create a system of criminal justice that both protects the community and avoids senseless sentencing policies that do nothing to reduce recidivism or rehabilitate citizens and have been successful mostly at creating dangerous overcrowding.

1 Amanda Klonsky, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues, New York Times (Mar. 16, 2020).
2 Centers for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020, updated July 22, 2020).
3 Stuart A. Kinner, et al., Prisons and Custodial Settings Are Part of a Comprehensive Response to COVID-19, 5(4) The Lancet Public Health, E188-89 (April 1, 2020).
4 Brendan Saloner, et al., COVID-19 Cases and Deaths in Federal and State Prisons, 324(6) JAMA, 602-03, published on JAMA Network website, July 8, 2020.
5 All dates are in 2020 unless otherwise indicated.
6 California Department of Corrections and Rehabilitation, Population COVID-19 Tracking, Accessed July 9, 2020.
7 Megan Cassidy and Jason Fagone, 200 Chino Inmates Transferred to San Quentin, Corcoran. Why Weren’t They Tested First? San Francisco Chronicle, June 8, 2020; see also, Kate Wolffe, Botched Outbreak of COVID-19 at San Quentin was Preventable (June 11, 2020); see also Plata v. Newsom, NO. CV 01-01351-JST (U.S. Dist. Ct. N.D.Ca.), Parties’ Joint Case Management Conference Statement (June 19, 2020).
8 Plata v. Newsom, NO. CV 01-01351-JST (U.S. Dist. Ct. N.D.Ca.) Case Management Conference Transcript at 12: lines 9-14 (June 19, 2020).
9 California Department of Corrections and Rehabilitation, Population COVID-19 Tracking, Accessed July 9, 2020.
10 Ibid.