My View: Early Indications Suggest Crime Is Falling Despite Releases and Changes to Charging Low Level Offenses during COVID-19

The criminal justice reform movement is worried about the consequences of the COVID-19 outbreak hitting the prisons and jails.  The results have been slow—in places like New Jersey, at least 1000 people will be released from their system.

New York is authorizing some releases from the notorious Riker’s Island facility.  But elsewhere the recognition has been slow.

California has had some jail releases locally, but has avoided the issue at the level of CDCR (California Department of Corrections and Rehabilitation).

We see a release from the Orleans Public Defenders, where the New Orleans criminal court judges denied their emergency petition to release people held in jail on non-violent charges, and also those at high risk of severe illness or death from COVID-19.

They said: “We simply can’t wait to do this piecemeal.  Waiting any further might be too long to prevent an irreversible outbreak.”

NBC News ran a piece yesterday focusing on the situation in New Orleans.  The focus of that piece is on the New Orleans Juvenile Detention Center, but also juvenile detention centers across the country.

“We are on the brink of the nightmare scenario,” warned Dr. Kim Cullen, a physician in Denver and one of the authors of an open letter to governors and state justice officials from a group of concerned doctors.

“If there isn’t swift action to move children out of these environments where this virus can spread like wildfire,” Dr. Cullen said, “we are just providing the kindling.”

The same could be written about the prisons and jails.  This is in fact a crisis in the making, and it is preventable still.  We are talking about a system that, under the best of times, did not work—health care in prisons and jails is underfunded, it is increasingly housed with individuals from marginal and disadvantaged backgrounds, people who have serious health, substance abuse and mental health issues.

And it is increasingly housed with people who are aging.

Moreover, as we learn more about crime and punishment, we learn that there is an inverse relationship here between the propensity to commit crime and aging—and the longer you incarcerate someone, the less of a threat they are, but the more it costs to incarcerate them.

In this sense, the coronavirus outbreak is simply forcing us to reckon with a system that is archaic and illogical.

But the reaction has been mixed at best.  NBC for instance reports, “Dozens of civil rights groups in 22 states sent letters urging governors and state officials last week to release incarcerated children and stop adding new ones to prevent COVID-19 outbreaks in detention facilities.”

While California has issued an order this week to temporarily halt adding children to state-run detention facilities, “Nebraska’s judicial system responded that it has no plans to implement a blanket policy on juvenile cases during the pandemic.”

“They don’t feel like that is necessary yet,” said Christine Henningsen, director of Nebraska Youth Advocates, a nonprofit trying to get children released. “I hope it doesn’t take a case of mass spread within a detention center or corrections facility to make that happen, because then it’s too late.”

But not only is the pressure going to mount to do something, the results so far are promising.

Remember, not only are some states and local jails issuing limited releases, but court trials are being delayed and many jurisdictions are now issuing citations and fines rather than arrests and detention for low level offenses.

A key question is what is the result.

Police and some politicians and prosecutors are warning that there will a crime wave as the result of these practices.

“If you put convicted, but not yet rehabilitated criminals out on the streets where large swaths of the business world are shut down, you can expect an increase in property crimes from looting to robbery,” executive director of the Fraternal Order of Police James Pasco said.  “You run the risk of exacerbating the problem.”

“The idea of releasing individuals, who by definition are not safe to be among the public, in the name of improving public welfare is nonsensical,” executive director of the National Association of Police Organizations William Johnson said.

“We’ve got to be thoughtful and not use broad brushes,” Houston Police Chief Art Acevedo said. “The last thing you want to do is release a large number of criminals onto our streets that have been not been assessed before they return to society.”

The Marshall Project reports this morning that the worst fears… at least so far, are not happening.

They find that “in Chicago, Detroit, Los Angeles and San Francisco, recent data show big drops in crime reports, week over week. The declines are even more significant when we compare this year with the same time periods in the three previous years.”

They conclude: “The decreases suggest that trying to contain COVID-19 is not a public safety threat in some big cities—at least for now.”

One reason for the crime decline, of course, is “the growing number of stay-at-home orders, which have been issued in more than 20 states and now cover a majority of Americans.”

“So many people are sheltering in place, crimes of opportunities are dropping,” John MacDonald, a criminologist at the University of Pennsylvania. “There are fewer potential victims out there.”

Still, the early data is important.  Successful releases and reduction in prosecutions will make other jurisdictions comfortable with making some releases.

The risk to the prison and jail populations is great and, without proactive efforts, we run the risk of a real catastrophe on top of a situation that is already bad.

—David M. Greenwald reporting

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