You'd certainly want to think about, "Do you really need to have someone who's within 80 days of release serving those days in a pandemic?" It's pure madness.
With justice systems across the country scrambling to respond to COVID-19, there is a lot of talk about what justice is going to look like when the virus ends. But what has the response actually consisted of—especially from prisons and jails, which have emerged as epicenters of the virus—and is there any reason to anticipate a "new normal" will emerge?
In this conversation with New Thinking host Matt Watkins, New York University law professor Rachel Barkow explains her skepticism. Certainly, she says, some jurisdictions—such as San Francisco and New York City—have made significant reductions to their jail populations. However, many others have not, and she calls the response from the federal and most state prison systems "anemic" (a recent study found prison populations in the first months of 2020 dropped by less than 2 percent in response to the pandemic).
Barkow allows if the effort in a place like San Francisco can gather enough data behind it to show that releasing more people—or not jailing them to begin with—poses no imminent risk to public safety, it could serve as a model for future reforms. But she is dismayed to see so many politicians and law enforcement actors continuing to cling to a narrow vision of safety, one that privileges incarceration, without accounting for its many harms, both to individuals and the wider community.
As she concludes, "there are people who care, and there are some people who are showing some leadership on this issue. I just wish there were more of them."
Resources and References
- The Intercept, 'New York City and Los Angeles Slash Budgets—but Not for Police' (05.22)
- The Marshall Project, 'Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception.' (05.21)
- Andrew Cohen in USA Today, 'Bureau of Prisons Response to COVID-19 Has Been Dangerous. The Public Deserves Answers.' (05.21)
- The New York Times, 'Virus Raged at City Jails, Leaving 1,259 Guards Infected and 6 Dead' (05.20)
- Reuters special report, 'Across U.S., COVID-19 Takes a Hidden Toll Behind Bars' (05.18)
- Gothamist, 'NYPD Defends Its Massive Budget as Social Services and Youth Programs Are Cut' (05.15)
- The New York Times, 'U.S. Prison Population Remained Stable as Pandemic Grew' (05.14)
- Michelle Alexander in The New York Times, 'Let Our People Go' (05.13)
- Cristine Soto DeBerry, chief of staff for San Francisco D.A. Chesa Boudin, in The Appeal, 'Jails and Prisons Must Reduce Their Populations Now' (05.12)
- The New York Times, 'Florida Inmate Released Amid Pandemic Killed Someone the Next Day, Officials Say' (04.15)
The following is an annotated transcript of the podcast:
Matt WATKINS: I wanted to talk to you today because we've been hearing a lot about how under COVID-19 the justice system is showing more compassion and maybe turning more to decarceration, and yes it's doing that only because it's being forced to, but hey, maybe we can make use of this moment to make a "new normal" after this pandemic ends. I'm wondering what you think of that more optimistic take.
Rachel BARKOW: It's probably overly optimistic, I would say. For one, we're not really seeing a very big change when it comes to prisons and prison population reductions. It's really business as usual for the most part, which is pretty depressing in a pandemic. So, to the extent we're seeing changes, it's really mostly with jails and pretrial detention.
I will say that part is good—that really close assessment about thinking who should you really detain pretrial. But it's been pretty modest, I have to say, and I think, for every place that you might look at—a San Francisco, say, that's really been robust in its efforts—you have so many jurisdictions around the country who've done basically nothing in that regard. So, I'm still going to maintain my role as your resident wet blanket and say that this isn't as much as I would've liked to have seen.
WATKINS: Rather than what some people are seeing as a justice system that's able to respond very quickly and make some real changes, you're more seeing a system, if anything, that is clinging ever tighter to the same reflexes and patterns that got us into mass incarceration to begin with?
BARKOW: I think so. It's like when people say you have a giant ship in the ocean, and it doesn't turn on a dime. This big bureaucracy is like that—it just doesn't turn. I think it's also a cultural problem. If you look at Departments of Correction, the Bureau of Prisons, prosecutors' offices, and you look at the filings that they're making and the responses that they have to this crisis, you would just never know there was a pandemic taking place.
It's the same rote response they have in every case: "No, you can't release this person because it would be a danger to public safety. There is a presumption they should be detained." There's no, "Well, wait a minute." Like, should we step back and ask, "Is it really in the interest of public safety to add to prison and jail populations in light of what we know about the spread of this virus?"
I mean, overall health and safety, we're better off with fewer people, but that weighing of the calculus is just not something I'm seeing by prosecutors' offices and corrections officials around the country. I mean, that is a really rare view.
WATKINS: To push back on you a little bit, you've made this distinction between prisons and jails, and I want to explore that a bit. But if we start with the more good news story, which is jails, which is where people are held on lower offenses generally for a year or less and are places where most people are held awaiting trial.
As you've said, in some big cities, for example, like New York City and San Francisco, we have seen a real shift. Certainly, New York City was criticized for moving too slowly, but movement has started now, and the population of jail in New York City's is down by 30 percent. Both arrests and arraignments in the city have been slashed. Is there not reason there to think if we can show that this does work, if the data shows at the end this didn't pose some huge peril to public safety, that that really could lead to a good outcome at the end of all this?
BARKOW: That would be great, if it happens. I'll give you some reasons why I'm a little doubtful. The first is that we were seeing a decline in those populations even before the pandemic, and a big part of that was because of the bail reform changes that had passed. The Center for Court Innovation produced a great report on this that explains that we got an enormous reduction from the bail reform legislation of about 40 percent.
WATKINS: Yeah, about 40 percent of New York City's pretrial jail population dropped in the year since the initial reform was passed.
BARKOW: A big reason for the decline is that. So, your question was, “might we see from this reduction, people will see it's okay, and then maintain it.” But if we look at the story of bail, we had that similar population drop, and in the middle of a pandemic, we couldn't even get people to wait and let's see how it goes with reducing that population.
You have, instead, a couple media reports, sensationalized accounts of cases that they try to claim posed a threat under the new bail law, and in the middle of a pandemic, the governor forced through changes to that bail reform, which is going to increase the jail population. Again, using your report’s numbers, it's going to increase it by 16 percent.
I'm skeptical that we're in an environment where people calmly, rationally say, "Oh, hey, we have this natural experiment. Let's take a look." What I fear might happen instead is if someone can pinpoint one person who was released because of an effort to reduce the population from COVID and that person commits another crime, is there going to be some New York Post or Daily News story about that person that's going to have people say, "See, this is why you can't release so many people."
WATKINS: Those stories have already started.
BARKOW: And I worry about that dynamic swallowing up the good data. But it may be that will have some effect, but the overall net good may still outweigh it. It may still be that people, certainly, I think the general public and maybe even some law enforcement folks who don't pay much attention to what goes on in jails and prisons, might be more attuned now to just how horrible the conditions are, and maybe they'll think twice before they seek detention. Or this crisis is going to be with us for a while. And so maybe this has a better chance of getting data behind it than the bail reform did, where it was barely three months off the ground before it had been stifled.
And I do think if we did do that, I think if we actually gathered data, that we would find that you actually can safely release these people and it's not going to lead to poor public safety outcomes. And then when you add in addition to that, the public health benefits, it's a no-brainer to do this. But even in the absence of a virus, we detain too many people and it ends up having counterproductive effects because, you detain people and they lose their jobs, and they lose custody of their kids, and they get evicted because they can't pay rent and they have no place to go.
It's a life-altering thing. So, we already have studies that show just detaining people pretrial itself makes them more likely to commit more crimes. It's a bad practice on any measure and reducing it is good for public safety, it's good for saving money, it's good for just respecting human liberty, It's good on every measure.
What it's not good for is the politics of tabloid journalism, because whoever supports that idea is going to have to explain all those things. And it's not soundbite material. You have to take a little time to walk people through it as opposed to just, you run one story that gets everybody's attention, and then they say, "See, this is why you can't let them out."
WATKINS: You're someone who studies criminal justice reform—how it happens and really why so little of it happens. I guess you could say that jails are easier places right now to implement reforms, because you have people in there with mostly lower-level offenses and the like.
BARKOW: Absolutely. That population, as you say, is misdemeanors and a bunch of people who haven't been convicted of anything. And even for the ones who have, it's lower-level things that are the areas where we've seen more reform efforts taking off because those are the things that are more palatable to the public.
It gets harder when you have more serious charges against people to argue for release. There's a whole cognitive-psychological field on this. The endowment effect that people have, it's this weird sense that you give a sentence to somebody, it's 10 years, and there's a sensibility among the public that, "Well, that's what we get. We get 10 years from this person, not a day less."
And so, if you release the person before 10 years and they go on to commit another crime, the immediate reaction is: we lost this thing that we otherwise had. What you don't get is someone saying, "They're going to get out in 10 years anyway." And does the extra time actually have negative effects? Could we try to measure what happens when we keep people in too long?
A rational way to look at it would be: what is the right sentence length given all of the trade-offs that we're thinking about? But we really don't have that discourse. None of it is a question of, "Hey, how was that sentence set in the first place?" Which by the way, almost every sentence is completely arbitrary and based in nothing. There's no science behind any of it. These are random numbers thrown out for people.
In the middle of a virus, you'd certainly want to think about, "Do you really need to have someone who's within 80 days of release serving those last 80 days in the middle of a pandemic?" And by the way, that's the thing we're talking about right now. It's pure madness. Because we have people who are going to be out in a month, in two months, in three months, and surely any sensible jurisdiction would say, "Get them out now, before they are infected."
But instead it's, "Well, no, it's only people with nonviolent offenses, who are pregnant, who are over 50." But you really need to ask yourself why you'd have those arbitrary lines when these folks are getting out anyway, in a matter of two months, three months. Keeping them in is madness but that's because of this whole psychological, I think, political effect that the public has, where if they were to get out earlier, even if it's 80 days earlier, and commit a crime, there'd be this blame game attached to having made that decision.
WATKINS: There's so much churn in jails that you can reduce the population pretty effectively simply by slowing down new admissions, which we've been seeing. Whereas in prisons you really need to have the system actually revisit its decisions, which I think you've shown the system is very reluctant to do. That's clearly playing a huge role in keeping down prison reductions. So just how bad is the situation, when we're looking at what's happened to the population in prisons since COVID-19 hit.
BARKOW: When we're thinking about prison populations, it is a really modest decline in overall numbers, barely a registered blip if you were to chart it out on a graph in terms of the numbers dropping, so like less than 1 percent of overall prison population declines, and some places are just flat, there's been no reduction at all—an anemic response, especially given what we're looking at.
WATKINS: Do you feel like the reform community is just not paying enough attention to this disparity between what's happening in jails and prisons and getting a little bit carried away on the jail side?
BARKOW: It’s a big tent, the criminal justice reform community. Certainly the people I talked to are depressed and miserable because they are laser-focused on the fact that there's a real crisis in our prisons and no one's doing anything about it. So, I think there are plenty of people that are taking note of how awful the response has been there and are really worried about it.
I guess it may depend who we're talking to and what people choose to emphasize. I think at a time like this, you certainly are grateful for any efforts in jails to reform things and that's all to the good, but if you're not thinking about prisons as well, you're missing the bigger part of the incarceration pie.
WATKINS: We know that infection rates—jails and prisons are emerging as epicenters of this virus across the United States. It's amazing to think that not more is being done. And you've talked about bureaucratic inertia as one of the reasons for that, but it also seems to be just making clear in this terribly stark way the denial of humanity—the attitude that we take to people who are behind bars.
BARKOW: You are hearing stories all around the country of people who are infected alone in their cells, crying and begging for help, and no one is coming to them. No one's coming to offer them medical assistance. They're just being left to rot there.
The one thing I am, I guess, more of an optimist on is that I think when people are aware and are close to issues, they feel an emotional connection to them. And the only reason that this has been able to go on the way it has is just because it is so far removed. But the more people know, I think, the more they would speak out and demand that we do something.
I do think people will feel a connection to the human beings who are inside these facilities. And I will say staff and incarcerated people alike, because it's not like the virus is distinguishing inside facilities between people who work there and people who are sentenced there. It's spreading among staff as well, and they're bringing it home to their families and their communities.
And then I also think, unfortunately, there is a segment of the population that I think Michelle Alexander, in a recent column, really eloquently captured that I think there are some people out there who put people who are incarcerated in some box as somehow deserving of less: deserving of less healthcare, or deserving of less consideration. It is a little bit of that “do the crime, do the time.”
I believe, though, that even among those people, if they got close and actually talk to the people inside prisons who had committed crimes and heard their stories and met them, I think a large number of them would change their minds. I really do. And I think we see that when we see the people who are part of the criminal justice reform movement. It is not a coincidence that so many of them are personally affected—either they themselves were incarcerated or a loved one was, or someone else that they knew. It's what mobilizes them for change because I do think as people get closer to this one, they care more.
WATKINS: On that question of building public awareness of the harms of the criminal justice system, how do you think the media has been doing in general? I mean specifically how they are covering, say, the reductions that have happened and the reforms that have happened as a result of COVID-19?
BARKOW: Well, there's some specialized outlets that deserve a special shout out for excellent coverage, like The Appeal and The Marshall Project, which I think do a tremendously good job covering these issues and really a mix of narratives of people inside, as well as broader policy pieces on what's happening and what's good and what's bad.
There are some reporters around the country for certain publications that are doing a good job, but they are the exception, because by and large, what you see when you read—including papers like The New York Times—is you get a lot of stories that law enforcement quotes are heavy in them about, "Well, we can't release more people, it'd be public safety disaster. We're doing what we can while maintaining the public safety we need."
There's not really any questioning of that. There's not really a question of, "Wait, is that helping public safety?" Is it really a trade-off between helping people not get the virus versus there's going to be a crime spree, or in fact are the two goals consistent with each other and you could both reduce crime and viral spread by reducing the population?
The worst form of journalism in all this is the Willie Horton-style that we have never gotten away from that is still as strong today as it ever was, where all it takes is one case and it's everywhere.
So, in this pandemic the case that’s gotten the most attention was a man down in Florida who was released pretrial, I think from a drug charge, and then allegedly committed a homicide afterwards. And the way the story ran was that, his release was tied to concerns with populations because of COVID. I don't even know if that's true, because I've seen disputes about whether or not he would have been released anyway. But it was reported as: here's someone released because of COVID concerns and he went and he killed somebody.
I have seen it in court papers. I've seen it filed in court papers in federal court in South Dakota where the prosecutor said, "Well, we don't want a situation like that." Other people have told me that prosecutors have mentioned the case in proceedings that they've been involved in. There's a U.S. attorney in Pennsylvania who mentioned that case for arguing that we really shouldn't see more releases.
This one case, which you couldn't have worse social science—we know nothing about why he was selected or about the overall population of people released. Because if we're thinking that there have been several thousand people released as a result of these efforts, and if that is the only case or one of a handful, then we are looking at a rate of 99 percent success in terms of no recidivism incidents or problems.
But just like Willie Horton's furlough program was 99.9 percent successful. Nobody cared, right? They only cared about him. And that is still the media’s MO, even in a time of a pandemic.
WATKINS: On the subject of people sticking to their narratives: law enforcement in the main has been sticking to its focus on public safety and the, some would say, narrow way in which law enforcement defines public safety. But have you been surprised that they haven't been more supportive and lobbying more for reductions in jails and prisons? I mean, given just what you've already mentioned, the number of corrections officers that we see getting infected?
BARKOW: It's a fascinating... I mean, in the New York Department of Corrections, you have over 1,200 people who have tested positive and four people have died. So, I am really surprised that they haven't done more to advocate for the release of people so that you could have better distancing inside these facilities.
It's kind of similar to the fact they don't really speak out on prison conditions either, even though the conditions in these facilities are abysmal. I think it's just a real mental struggle that people have. In part, they think to themselves, "Well, why should people who commit crimes get this good thing?”
Even when it's cutting off your nose to spite your face, because you would both increase your own work conditions and make them better, and it'd be good for public safety because it would make it more likely that people don't reoffend when they get out. There are all kinds of reasons to do it. And yet, there's that resistance there that I do think stems from this, "I don't want them to have it, even if it means I'll also suffer."
I think that's part of what we're seeing in terms of their lobbying now, where they're not really calling for more releases. Because I think it's that kind of sensibility that, well, it's them versus us, as opposed to, we are literally all connected here.
You're connected to people who are a different race than you, of a different social class than you, people in different countries from you. You just can't build a wall around yourself, and just fend for yourself. We're all in it together. I do not think the “we are all in it together” mindset is really prevalent among law enforcement and corrections officers.
WATKINS: Another factor in trying to understand what a post-COVID criminal justice landscape could look like is the economic crisis that this country is heading into right now. We know when there's an economic crisis, crime can go up. We also know that criminal justice reforms, at the best of times, are very vulnerable to crime rates going up. So, what would be your concern there about a post-COVID criminal justice future?
BARKOW: Yeah, I am really worried about that. One legitimate concern that some governments have had with releasing people is, to where? If we release them, where will this person go? It just breaks open the fact that we have a severe housing shortage, and we have a severe shortage in programming for people: to help them with re-entry, to help them when they're out with drug treatment, and mental health treatment, and the other services, and wrap-around services they need to succeed.
At a time of a fiscal crisis, those things, which were already underfunded, are going to be cut even more. And because we're looking at people with massive unemployment, it's highly likely we're going to see crime go up in certain sectors. And I think the response to that is highly likely to be more policing. The kind of immediate, "Let's deal with it right now. We have this problem. Let's just quickly deal with it." Without thinking, what we really need is investment.
This is an old story, we already know this, that there have been these investments in policing and incarceration and not in the infrastructure, social services, urban renewal, the kinds of things that actually would do a better job addressing crime, but they take time and you don't see the fruits of those kinds of things until later. And if you're dealing with an immediate crime issue or a concern with disorder right away, the demand is going to be to deal with it right away with policing.
I think James Forman's book, Locking Up Our Own, does such a good job describing this dynamic in Washington, D.C. There's just an increase in drug use and gun violence and the community there wanted all these longer-term investments, but they also wanted the immediate addressing of these problems.
And they got the immediate policing and incarceration and they never got the long-term investments because that's how we politically respond to these things. I really fear we're going to see that again. I think you see signs of it when you look at the New York budget—no cuts to policing, but cuts to everything else.
WATKINS: To try to end on a more hopeful note, is there anything that has surprised you—I mean, in a good way—about responses across the country, or something you could point to, or maybe you just want to imagine something, that you think would be a helpful launching point for the more systemic reforms that it's so clear from your writing you so fervently want?
BARKOW: There's a few. I am definitely heartened by San Francisco's really dramatic reduction in the jail population, and Chesa Boudin's efforts as the district attorney there to really support that and encourage more of it. That is a model that we should all be looking at. If it succeeds, I think that would be such a great thing for other jurisdictions to emulate.
I think it's been encouraging to see some governors use their clemency powers to try to address this because that's a big part of what they're for. I was pleased to see the Republican governor of Oklahoma do it. I think Governor Beshear in Kentucky is probably the best in terms of thinking about how to proactively use his authority to address the pandemic in the criminal justice system. So, we do have at least a couple political leaders.
I guess the last one that I will say that I think is promising is when the First Step Act was passed at the federal level, Congress actually put something in there that allows people not to have to get the motion for compassionate release for things like terminal illnesses, crises like this one… Before, the only way it could ever be considered is the Bureau of Prisons had to file the motion, and if they didn't file it, you never got your day in court. And Congress changed that, so that if the Bureau of Prisons doesn't respond to you in 30 days, you do get to go to court, directly to a judge.
There are some promising things we're seeing there because I think we're seeing, not all, but we are seeing some federal judges around the country reading these motions for compassionate release, really learning about federal prisons and what's going on there, and granting them.
Not just granting them and giving the relief to the person who's filing, but I think developing a deeper understanding of what's happening in prisons themselves, which I think will help when they're thinking about sentencing more generally, when they're thinking about the judiciary's role in terms of oversight of prisons, generally. So, there are people who care and there are some people who are showing some leadership on this issue. I just wish there were many more of them.
WATKINS: Well, Rachel, it's as ever really bracing and illuminating to talk to you and I really appreciate your perspective and I appreciate you making the time to join us again.
BARKOW: Oh, thanks for having me. One of these days, you have to have me on for something that’s more uplifting and positive! But it's tough to find those things in criminal justice.
WATKINS: All right. Well, we'll have to put our heads together.
BARKOW: All right. Sounds good.
WATKINS: Thank you again, Rachel.
BARKOW: Oh, you too. Take good care.