As in any crisis or tragedy, as we sit trying to figure out how to deal with the unprecedented impact of the Covid pandemic, we also look for silver linings. One hope is that by endangering so much of what we considered “normal” life so quickly, people may reassess their priorities and come out the other end of this tunnel better focused on what is really important in their lives. I know it has certainly caused me to be more grateful for the things that really matter to me: connection with friends and family, the joys of travelling, and of course being so lucky to have found a profession that I care so deeply about.
Because this blog is intended to be primarily about the criminal justice system in America, I have thought a bit about what potential silver linings could be found in the first-of-its-kind crisis that the court system is currently grappling with.
The biggest area I have identified that may be positively impacted by the crisis if overincarceration. Even before the pandemic, America was beginning to grapple with the tremendous cost of the trend that has lasted for more or less the last 40 years of imprisoning a larger and larger percentage of our population for longer and longer periods of time.
In the last 40 years, after being relatively stable from the 1920s through the 1970s, the rate at which America incarcerates people has skyrocketed, almost quadrupling in that time. Nearly 1 in every 100 adults is incarcerated, a rate 5-10 times higher than countries in western Europe and other democracies.
This statistic needs its own paragraph: there are now more people in the United States serving life sentences than there were people incarcerated in total in 1970. Read that again. Ponder it. It is an insane, but nevertheless true, fact.
Incarceration has obvious negative impacts on those incarcerated, worsening medical and mental health, ability for employment, and severed familial and community connections. These effects can be directly linked to higher probability for recidivism. But the impact on society goes far beyond that on the people who are actually incarcerated. Children growing up without a parent are far more likely to remain trapped in a cycle of poverty and to be incarcerated themselves. Money spent building prisons and housing prisoners is money that could be spent on education or infrastructure or actual rehabilitation.
So why do I have hope that the pandemic may help us to see that things must change, the pendulum must swing? Ultimately, for policy makers, incarceration should be a question of cost and benefit. The spread of the virus in jails and prisons has caused that cost to go up. Most people agree that someone who shoplifts from a store or even steals a car deserves some level of punishment, but one that subjects them to a significant risk of death or serious bodily harm does not fit such a crime.
Many jurisdictions have worked quickly to reduce jail and prison populations by reducing inmates early. Clearly, there is a recognition that, at least during this crisis, the costs of some incarceration outweigh the benefits. More importantly, there will now be data to analyze the effects on society of such release. Undoubtedly, some people who are released early will go on to commit new crimes, but if that number is (as I suspect it will be) relatively low, there will be a great argument that the cost of keeping so many people incarcerated to prevent a relatively small amount of crime simply is not worth it.
It is time to rethink the goals of incarceration and better tailor sentences toward those goals. The savings realized by a reduction in incarceration can be redirected towards programs that better prevent crime and to other areas of society that will desperately need additional funding as we grapple with the lasting economic impact of the pandemic.
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