San Diego Law Review

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Prisons and Pandemics

Library of Congress Authority File


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This Article focuses on how to balance public health, public safety, and incarcerated people’s legal rights when implementing a program for early release from confinement. Ethical, epidemiological, and legal arguments all point to a need for an immediate reduction in the incarcerated population. However, this leaves open several points of reasonable disagreement about how to manage early release. These include how to set priorities for processing and releasing individuals across the country. For example, officials could prioritize screening individuals who are housed in facilities that have been hit hard by infection; or by screening individuals who have a safe place to quarantine post-release; or individuals who are being held for violations of parole, lower level and nonviolent crimes, or prior to their trials; or individuals who are most vulnerable to coronavirus; or individuals who have already served most of their sentences; and so on. This Article discusses how to set priorities for safely and quickly returning incarcerated individuals to their communities during a life-threatening outbreak.

In Part II, we establish why incarcerated people are especially vulnerable during a public health emergency. For a variety of reasons, incarcerated people are more likely than the general public to acquire and to experience negative outcomes from infectious diseases, putting their health and the health of surrounding communities at risk.

In Part III, we discuss the pandemic response taken by federal and state prisons and local jails and explain why it has had little success. For the most part, releases have been slow and discretionary, meaning that whether an individual is released is “like the luck of the draw” because there are “wardens in certain prisons that will get right on it, and some that won’t release a soul.” We also outline some of the recommendations proposed by bodies like the ACLU and members of Congress. Careful consideration of these different plans for releasing incarcerated people from confinement is important in order to prepare for COVID-19 in the coming months and to look toward future pandemics.

In Part IV, we summarize the moral, practical, and legal arguments for making the health of incarcerated people a priority during a pandemic. These arguments rely on the ethical principle that we are morally required to protect individuals who have been deprived of the liberty to protect themselves; empirical evidence indicating that high infection rates within correctional facilities have serious public health consequences for surrounding communities; and legal precedent that suggests that incarcerated people have a right to protection from infectious diseases. Taking these arguments together, it is reasonable to support a substantial reduction in jail and prison populations, irrespective of one’s general views about the ethics and purpose of mass incarceration.

In Part V, we delve into the details of how to release incarcerated people. There have been several general recommendations outlining broad guidelines for doing so. However, the ethical priorities that underlie these different recommendations have not been made explicit and have not been considered together. In this Part, we identify the various ethical considerations relevant to early release, and we argue that five factors should be given special priority. These are (1) risk of recidivism for a violent offense, (2) presumption of innocence for the accused, (3) risk of mortality from coronavirus, (4) proportion of sentence served, and (5) responsibilities to third parties.

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