The blog of the Urban Institute
December 9, 2020

More Than a Virus: Reimagining Justice during and after the COVID-19 Pandemic

December 9, 2020

Drawing on his own prison experiences, Eugene V. Debs wrote in 1927 that “if there are men and women anywhere among us who need to have their condition looked into in an enlightened, sympathetic, and helpful way… they are the inmates of our jails, prisons and penitentiaries, hidden from our view by grim walls, who suffer in silence, and whose cries are not permitted to reach our ears.”

The coronavirus has drastically affected the way Americans live, work, and learn; has caused more than 286,000 deaths; has placed millions into quarantine; and has forced us to practice social distancing, all in hope of preventing its spread.

Yet for roughly 2.3 million people confined in prisons nationwide, hidden from our view behind grim walls and living in conditions that can keep diseases spreading, social distancing is nearly impossible. As a result, several states—including California, Colorado, New Jersey, New York, and Ohio—have begun releasing certain incarcerated people early to reduce overcrowding and potential spread of the coronavirus. They are prioritizing releasing the elderly, people who are medically vulnerable, and incarcerated people who are considered nonviolent.

These releases beg the questions: What should happen with incarceration after we successfully keep the coronavirus at bay? Should we continue the path of punitive policy, where racist rhetoric is used to create a caste “system of control that shatters the lives of millions of Americans—particularly young Black and Hispanic men? Or, should we draw from a place of compassion, and reshape and reimagine justice to find more humane, constructive ways of responding to the real harms of violence and of crime?”

After the COVID-19 pandemic, will the criminal justice system continue as usual?

Craig Haney, a psychology professor at the University of California, Santa Cruz, once told the Atlantic that from about the mid-1970’s to early 2000’s, “there was really only one point of view about incarceration, which was the more of it, the better.” However, as COVID-19 spreads through jails and prisons, it is changing how Americans think about incarceration.

Still, it is possible that instead of considering COVID-19 a moral reason to limit incarceration, it could be used as a justification to bolster the prison state electronically. Because our society has continuously placed profits and prestige over people, it’s possible that new surveillance systems might be expanded and digital prisons created so that “instead of having someone being monitored in custody, they are being monitored out of custody.

The number of people accused and convicted of crimes in the United States who are monitored with ankle bracelets and other electronic tracking devices increased nearly 140 percent from 2005 to 2015. Massachusetts provides a clear example. In 2001, the state created its Electronic Monitoring Program, which uses monitored surveillance as an alternative to incarceration to improve public safety. Yet since it began eight years ago, the number of people required to wear GPS monitors in Massachusetts tripled to about 4,000 people—including people on parole, probation, and those awaiting trial. And though fewer than 1 percent of the monitoring alerts in Massachusetts end up resulting in warrants for someone’s arrest—such as those caused by curfew violations and impermissible travel—people wearing the devices say the devices can hurt their ability to obtain and keep employment, attend family events, and get medical treatment. Similar constraints can be found in Chicago.

Chaz Arnett, an associate professor at the University of Maryland School of Law says the increasing use of GPS electronic surveillance, or “e-carceration,” creates “the risk of producing a subgroup of surveillees who are increasingly divorced from the civic life of their community, divorced from opportunity for social mobilization, and divorced from political and educational life and opportunities.” If this is the case—if expanded surveillance became the norm—would it really be an improvement over incarceration? Given the state of incarceration today, the potential for abuse is great, and the mere rearrangement of an old oppressive system into an altered form could make it even greater.

What could a reimagined justice system look like?

Monitored surveillance and digital prisons, just like slavery, Black codes, convict leasing, and mass incarceration, are systems of control that recycle and perpetuate state violence against historically subordinated groups. But our goal as a nation doesn’t have to be creating a better and alternative system of criminalization and control.

Society could instead consider shifting federal funding more toward evidence-based strategies to support the people who often end up in jails and prisons to different outcomes. This could include investments in the following:

  • education (technical and vocational)
  • drug treatment programs
  • mental health programs
  • programs that help formally incarcerated people cope with the aftermath of incarceration, such as the Fortune Society
  • community antiviolence organizations, such as Elite Learners in New York City.

Changing the way we view the criminal justice system is possible, but only by continuously and genuinely addressing, understanding, and ending some of the root causes of crime: profound poverty, marginalization, racism, and violence. But doing so requires all of us to “visualize a more expansive, fluid, ‘cosmos-politan’ definition” of humanism, a state in which meeting human needs is the center of innovation, one where all people deserve the resources needed to fulfill the human life and experience, not just a select few. In doing so, we can positively define how we bend and hold the moral arc toward justice.

Incarcerated people learn how to code as part of the Last Mile program, on September 27, 2016 in San Quentin, California. (Photo by Melanie Stetson Freeman/The Christian Science Monitor via Getty Images)

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As an organization, the Urban Institute does not take positions on issues. Experts are independent and empowered to share their evidence-based views and recommendations shaped by research.