Approximately 3,500 people have been released from California prisons in response to the coronavirus pandemic.
If COVID-19 poses a greater threat to public safety than the released inmates, Bernadette Rabuy wants to know why they have to be locked up in the first place.
Rabuy, the senior policy analyst for the Prison Policy Initiative in Northampton, Mass., told Street Roots the pandemic provides an opportunity for America to reconsider whether it’s necessary to keep 2.3 million people — almost a fourth of the world’s entire prison population — behind bars.
However, she said, she remains uncertain if a country trained to think in terms of good guys and bad guys will seize the moment.
“I think there’s definitely an opportunity, but it’s hard to say which way I would lean between optimism and pessimism,” Rabuy said.
“Those of us who are opposed to mass incarceration must be prepared to push for positive reforms,” she said. “For this to be a real lesson and to achieve lasting changes, we should be prepared to make those arguments and make that push after the pandemic.”
While states like California may release inmates because of the crisis, Rabuy said efforts to reduce prison populations across the country have been modest at best, focusing on people at the end of their sentences or awaiting trial.
“The releases are starting at the lower levels,” she said. “That makes sense. That’s the low-hanging fruit. Those are the people who are getting out for the most part right now. It’s still an opportunity. I’m hoping it will just show our correctional officials that these people don’t need to be locked up at all.”
Washington Gov. Jay Inslee announced March 13 that he was releasing nearly 1,000 inmates because of COVID-19 risks. However, Oregon Gov. Kate Brown has refused to reduce her state’s prison population in response to the pandemic even though Oregon’s 14 prisons are more than 95% full.
“It’s frustrating that Oregon’s governor isn’t taking the necessary steps to improve safety for all residents, including those in correctional custody,” said Nicole Porter, the director of advocacy for the Sentencing Project, a prison reform organization in Washington, D.C.
“Social distancing is virtually impossible in a prison, given the close quarters,” Porter said. “No state is doing what they need to do. There are only states doing more than others.”
Brown reiterated her position March 14 to the approval of the Oregon District Attorneys Association. In an April 18 letter, Tim Colahan, the executive director of the association, urged Brown and other state leaders to hold the line against releasing inmates.
“Nearly 70% of the Department of Corrections population has been convicted for committing violent crimes against Oregonians,” Colahan wrote. “Unlike many states across the country, Oregon’s prison population is not substantially made up of individuals serving long sentences for drug possession crimes.”
Oregon voters approved Ballot Measure 11 in 1994 to apply mandatory minimum prison sentences to certain crimes. Many of Oregon’s inmates fall under Measure 11 requirements, Colahan told state officials, including crimes such as murder, rape, robbery and kidnapping.
“These are serious crimes, many with vulnerable victims, and many committed by criminals with violent histories who have thus earned their eventual stay in an Oregon institution,” he said.
“We must strike a balance between public health, public safety and justice.”
STREET ROOTS REPORT: Youths branded by Measure 11
Jodi Hansen, the founder of the Oregon-based prison reform organization Remnants Initiative, told Street Roots the association’s position defies the facts.
“Why does the Oregon District Attorneys Association always react and say that crime will increase or that it will hurt victims to release people early who are going to release soon anyway?” Hansen said.
“Tough-on-crime policies of the past have done nothing to improve public safety or to help crime victims to heal,” she said. “What will we as voters do to change the criminal legal system and our failed reliance on warehousing people in crowded settings that do nothing to address the root causes of crime?”
Hansen said the existing system does nothing to help offenders, victims or public safety in general.
“The voters did this, and the voters need to undo it,” she said. “I see the failure of this system every day as our nonprofit attempts to help people enter law-abiding, tax-paying citizenry after incarceration.”
While the pandemic provides an opportunity for reform, she said, she finds it sad that it takes a global crisis to open people’s eyes.
“Our system has been failing for a long time now,” Hansen said. “COVID-19 just shines a bright light on this very expensive failure in ways most of us could ignore before this crisis.”
Rabuy said concerns about released inmates committing fresh crimes cannot be dismissed as she and other advocates push for reform.
“That’s going to be tricky,” she said. “No one can say for sure what crime is going to look like. Right now, we’re seeing a lot of unemployment. We don’t know what the economy is going to look like. We have the data that many people who are in jail are poor even before they get there. There could be upticks. I’m not saying there will be upticks, but it could happen.”
She pointed to a scenario unfolding in New York. There, approximately 1,500 people have been released from prison since March 16. Officials at the New York State Department of Corrections and Community Supervision report that some 50 of those people, or 3%, are back behind bars for new offenses.
“New York is making me a little pessimistic,” Rabuy said.
Conservative commentators have a field day with the recidivism figures, Rabuy said, adding that rushing to judgment presents one of the greatest obstacles to reform.
“We need to give reforms a chance,” she said. “We need to wait and see and make sure we’re providing services. It’s not just letting people out. It’s giving them services and not setting them up to fail. Are we creating too many conditions so they’re set up to fail from the get-go?”
Fitting people with electronic ankle bracelets in lieu of incarceration is an example of this, Rabuy said.
“Some people have to charge that ankle bracelet,” she said. “How can you charge an ankle bracelet when you’re homeless? Are we thinking through if people even have a shot when they’re released? This is an another moment to evaluate how we see people who are locked up. Do we see them as members of the community? Or do we see them as separate?”
While Prison Policy Initiative activists lobby for reform, they also produce research and reports.
“We really believe that in order to replace mass incarceration, we need to make the criminal justice system more understandable,” Rabuy said.
The pandemic may not lead to widespread prison reform, she said, but it may raise enough awareness of the prison system to at least build a case for eliminating or reducing pre-trial detention and cash bail.
STREET ROOTS REPORT: Should Oregon rethink its cash bail system?
“That particular movement is getting stronger,” Rabuy said. “If more states moved away from money being the biggest factor for people being incarcerated to resolve their cases, we’d have much smaller populations locked up right now.”
Rabuy said she wants to see incarceration entirely eliminated.
“As an organization, we don’t have a formal position on that,” she said. “Personally, I think we should at least reimagine the conditions that lead people into the criminal justice system. The criminal justice system should not be the answer to poverty.”
First, however, there is the immediate crisis of the pandemic.
“The reality is a lot of these facilities, even with the reductions that are happening, are fluid,” Rabuy said. “There are a lot of people coming in and getting out. Even if we didn’t care for moral reasons about people being locked up, policymakers should still care because what happens in prison will affect the larger community.”
Beyond the pandemic, she said, reformers need to score whatever successes they can.
“The issue is whether this is going to be a real lesson,” she said. “We want to see a true, lasting reduction and not just this moment.”
Porter, at the Sentencing Project, said she wishes America would accept the opportunity the crisis presents.
“In the United States, the response is very modest compared with what needs to happen,” she said. “COVID-19 is a situation that has changed everyone’s lives, including those who are incarcerated.”
Rabuy reiterated that the first necessary step in reform is services for people who have been released to lessen the chance they’ll return to prison.
“I think it’s going to be hard if we don’t set up services for people on the outside,” she said. “Those who are released could end up back in the system, and it will be hard to convince policymakers it was the right decision to release them.”
Rabuy works half time for the Prison Policy Initiative. She spends the rest of her professional life as a public defender. Her role as an attorney gives her more than a policy perspective on the people on the other side of the locked doors.
“Everyone has a story,” she said. “Even people accused of really, really sad and horrible crimes, who may even admit to those crimes, have very sad stories. You can see where they’re set up to fail by our system.”