Systems Change in a Crisis-Part 1

Having engaged in systems change advocacy for my entire 35 year legal career, one of the usual pieces of advice I give to others is that systems change is usually a slow process that takes years of advocacy, and normally happens incrementally. But, due to COVID 19, we are in an unprecedented world wide public health crisis, and systems change on many levels must move quickly.

Of course, in some ways, systems change is happening all around us. Governors and Mayors are issuing public health emergency declarations and ordering people to stay at home except for essential needs. Congress appears to be on the verge of passing a massive emergency relief bill, that although far from perfect, will provide relief for many Americans.

However, there are two areas which must be addressed promptly that are simply not moving at the speed they should given the current crisis:

  • People who are incarcerated or detained; and
  • upcoming elections.

In today’s post, I will discuss the need to release many of those who are incarcerated or detained. I will follow up with how elections should be handled in the current crisis in a separate post.

According to the Prison Policy Initiative

The American criminal justice system holds almost 2.3 million people in 1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities, 3,134 local jails, 218 immigration detention facilities, and 80 Indian Country jails as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

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Per the Prison Policy Initiative Report, Mass Incarceration: The Whole Pie 2020released earlier this week:

  • 20% of incarcerated people are locked up for non-violent drug offenses.
  • In 2016, at least 168,000 people were incarcerated for such “technical violations” of probation or parole — that is, not for any new crime. These can include things like drinking alcohol, or visiting someone who the person on probation is not supposed to visit, neither of which are crimes.
  • For behaviors as benign as jaywalking or sitting on a sidewalk, an estimated 13 million misdemeanor charges sweep droves of Americans into the criminal justice system each year (and that’s excluding civil violations and speeding). These low-level offenses account for over 25% of the daily jail population nationally, and much more in some states and counties.
  • There are over 6,600 youth behind bars for technical violations of their probation, rather than for a new offense. An additional 1,700 youth are locked up for “status” offenses, which are “behaviors that are not law violations for adults, such as running away, truancy, and incorrigibility.” Nearly 1 in 10 youth held for a criminal or delinquent offense is locked in an adult jail or prison, and most of the others are held in juvenile facilities that look and operate a lot like prisons and jails.
  • 11,100 people are in federal prisons for criminal convictions of immigration offenses, and 13,600 more are held pretrial by the U.S. Marshals. The vast majority of people incarcerated for criminal immigration offenses are accused of illegal entry or illegal re-entry — in other words, for no more serious offense than crossing the border without permission.
  • Another 39,000 people are civilly detained by U.S. Immigration and Customs Enforcement (ICE) not for any crime, but simply for their undocumented immigrant status. ICE detainees are physically confined in federally-run or privately-run immigration detention facilities, or in local jails under contract with ICE. An additional 3,600 unaccompanied children are held in the custody of the Office of Refugee Resettlement (ORR), awaiting placement with parents, family members, or friends. While these children are not held for any criminal or delinquent offense, most are held in shelters or even juvenile placement facilities under detention-like conditions.

Media reports show that COVID 19 is hitting the US correctional system. Of course, this concentration of people is the exact opposite of the social distancing that is being urged on the rest of the population, and the results are not surprising with prison staff testing positive. Of course, prisoners are also testing positive. ICE detainees have gone on a hunger strike due to their fears about COVID 19.

This is clearly a wildfire that if left on checked will run rampant throughout our nation, as prison guards return to their homes and infect their families. Sensibly, some jails and prisons are releasing some prisoners due to the crisis.

However, a chaotic approach to reducing our prison population in a time of crisis is simply insufficient. If ever there was a time to end mass incarceration, COVID 19 has dictated that the time is now, and it must be done nationwide.

Based on the data cited above, our nation should immediately release:

  • 20% of the prison population incarcerated for non-violent drug offenses;
  • all those incarcerated for non-criminal violations due to technical probation or parole offenses;
  • all those in prison for misdemeanor offenses; and
  • all ICE detainees who have committed no crime other than seeking to enter the United States, including all unaccompanied children.

Of course, screening for COVID 19 should happen at the time of release, and those who need medical attention and/or quarantine should receive it free of charge.

Given the public health emergency, Governors can make this happen at the state and local level. While it is unlikely that the President will do this at the federal level, Congress could push him by including it in the next emergency relief bill. All of our social distancing will be for naught if we do not immediately address the COVID 19 wildfire that is brewing in our correctional system now.

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For more information on how I can help you accomplish progressive, effective systems change, contact Jeff Spitzer-Resnick by visiting his web site: Systems Change Consulting.

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