Katie Basalla, Associate Member, University of Cincinnati Law Review
One of the main critiques of the United States’ criminal justice system over the past few decades has been mass incarceration. With a rate of 698 incarcerated per 100,000 residents, the U.S. prison system has more inmates per capita than any other nation. There are many issues that derive from the negative effects of having a system that incarcerates so many individuals, such as the violation of Civil Rights and the disproportionate impact on racial minorities. These issues have been exacerbated by the outbreak of COVID-19, a pandemic that has forced the world to social distance. Being confined in state custody makes it almost impossible to follow the social distancing guidelines.
At the start of 2020, there were 2.3 million people confined in prisons and jails in the United States. When COVID-19 hit the country in early 2020, massive spread of the virus within prisons and jails was inevitable. During the week of March 26, 2020, there were 57 new cases reported from the federal and state prison systems; a month later that number jumped to 6,664 cases. While the spike is in part due to the increased availability of testing, it also highlights how quickly a virus can spread in the conditions created in prison. This mass spread has been particularly troublesome when looking at the number of prisoners detained for nonviolent crimes and those in jail awaiting trial who have not yet been convicted. If the U.S. addressed mass incarceration by implementing alternative punishments to criminals that pose little to no threat to society, such as community service or rehab, the number of individuals behind bars would be significantly lower. This would have allowed prisons to manage those incarcerated in a more effective and safe manner during a crisis such as COVID-19.
II. Breakdown of the US Criminal Justice System
The U.S. has continuously been criticized for its punishment of nonviolent crimes. Most notably, the country has received backlash for its “War on Drugs.” Although not the only cause of mass incarceration, the crackdown on nonviolent drug-related activity has been a contributing factor to the overcrowded prisons and jails in the U.S. The treatment of nonviolent crimes is particularly problematic when looking at the disparate impact it has on racial minorities.
Of the 2.3 million people confined in prisons and jails, 631,000 people are in local jails, 1,291,000 are in state prisons, and 226,000 are in federal jails and prisons. Roughly 55% of the people incarcerated in state prisons have been convicted of violent crimes, and the remaining 45% are in for nonviolent crimes, such as theft, drugs, and public order violations. In local jails, roughly 75% of people are awaiting trial. Of those 75%, only 32% are awaiting trial for violent crimes. In other words, a little more than half the people in local jails are there because they are merely suspected of committing a nonviolent crime.
When broken down by race and ethnicity, it is clear that the U.S. prison system disproportionality affects racial minorities. The racial breakdown in prisons, although improving in recent years, “continues to look substantially different from the demographics of the country as a whole.” As of 2017, the U.S. adult population was made up of 64% white people, 12% black people, and 16% Hispanic people. However, only 30% of the incarcerated population was represented by white people, while black and Hispanic people made up 33% and 23% of the incarcerated population, respectively.
III. Changes Being Made Because of COVID-19
The outbreak of the COVID-19 virus has drawn a great deal of attention to the overcrowded and unsanitary conditions of U.S. prisons and jails. The effort to reduce the incarcerated population has been centered around releasing individuals serving time for nonviolent crimes. The focus on reducing the incarcerated population by releasing nonviolent criminals has drawn a sharp divide between violent and nonviolent crimes.
Nonviolent offenders that have served most of their sentences have been released early. Ohio Governor DeWine explained that the state was not releasing “anyone who is dangerous … [like] sex offenders, for example.” In Ohio, the focus was on people “who might be getting close to release and who [are] in for a minor offense.” In Washington, Governor Inslee ordered the release of nearly 1,000 inmates to slow the spread of the virus, focusing on individuals who were at high risk of health complications due to the virus, who were scheduled to get out soon, and who were nonviolent offenders.
Similarly, bond requirements have changed for those accused of nonviolent crimes. In California, the Judicial Council has begun to set bail at zero for “most misdemeanor and lower-level felonies in an attempt to limit the spread of the coronavirus in jails statewide.” In Texas, as demands for release of people in jails increased, the Texas Governor Abbott signed an executive order that prevented the release of a person arrested for a crime “that involved or threatened physical violence” without a monetary bond. In a Tweet, Abbott explained the reasoning by stating he “want[s] to prevent the spread of #COVID19 among prison staff & inmates. But, releasing dangerous criminals in the streets is not the solution.”
IV. Changes to Make Post-COVID-19
The response to the COVID-19 issue in prisons and jails has highlighted a sharp contrast between violent and nonviolent crimes in the U.S. When the racial and social implications of mass incarceration are added into the mix, it shows that a disproportionate amount of minorities are affected by mass incarceration. In the context of COVID-19, this literally becomes a matter of life or death. In summary: a disproportionate amount of minorities are being put in a potentially deadly situation, many for committing or being suspected of committing nonviolent crimes. That is a broken system.
When presented with an issue of life or death during the COVID-19 outbreak, many nonviolent criminals were released from custody. This proves that many people are incarcerated in the U.S. that do not need to be. When faced with a life or death situation, state officials have asked themselves if the person in question needs to be in state custody – yes or no? In the years post COVID-19, the criminal justice system should continue to evaluate sentencing in this manner. If the answer to the above question is no, the individual does not need to be in state custody, plenty of alternative punishments exist. Individuals can do community service, go to a rehabilitation center, or even be on house arrest. Mass incarceration has been an issue in the U.S. for many years. When the dust settles after this outbreak, may it shed light on ways to fix this broken system.
 See Carl Takei, From Mass Incarceration to Mass Control, And Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare, 20 U. Pa. J.L. & Soc. Change 125 (2017).
 Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html?c=pie&gclid=CjwKCAjwv4_1BRAhEiwAtMDLsnLI-MO1YnpmZc_XI-DzPTqlDgu2vvxGzRaLUbbaVOAZDk-XNR81oRoC39cQAvD_BwE.
 See e.g. James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U.L. Rev. 21 (2012); Joseph E. Kennedy, The Jena Six, Mass Incarceration, and the Renormalization of Civil Rights, 44 Harv. C.R.-C.L. L. Rev. 477(2009).
 Sawyer and Wagner, supra note 2.
 Katie Park, Tom Meagher, and Weihua Li, Tracking the Spread of Coronavirus in Prisons, The Marshall Project (Apr. 24, 2020), https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-in-prisons.
 For an example of how bad conditions currently are in some prisons, see Josiah Bates, Ohio Began Mass Testing Incarcerate People for COVID-19. The Results Paint a Bleak Picture for the U.S. Prison System, Time (Apr. 22, 2020),
 See Bidish J. Sarma and Sophie Cull, The Emerging Eight Amendment Consensus Against Life Without Parole Sentences for Nonviolent Offenses, 66 Case W. Res. 525(2015).
 See Takei, supra note 1, at 131. “One highly influential theoretical framework for explaining and critiquing mass incarceration is Michelle Alexander’s 2010 book, The New Jim Crow, positing that the War on Drugs converted the criminal justice system into a new form of racialized social control.” Id.
 Sawyer and Wagner, supra note 2.
 John Gramlich, The gap between the number of blacks and whites in prison is shrinking, Pew Research Center (Apr. 30, 2019), https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison/.
 See e.g. Jesse Jackson, Let Prisoners Go During COVID-19 Pandemic, CounterPunch (Apr. 29, 2020), https://www.counterpunch.org/2020/04/29/let-prisoners-go-during-covid-19-pandemic/.
 Mike DeWine (@GovMikeDeWine), Twitter (Apr. 6, 2020, 2:28 PM).
Alfred Charles, State to release nearly 1,000 nonviolent prison inmates early to limit COVID-19 spread, KomoNews (Apr. 13, 2020), https://komonews.com/news/local/state-to-release-nearly-1000-inmates-early-to-limit-coronavirus-spread.
 CA sets zero bail for most misdemeanor, low-level felonies to limit COVID-19 spread in jails, ABC7 (Apr. 7, 2020), https://abc7.com/california-jail-system-judicial-council-coronavirus-covid-19-in-jails/6083805/.
Frank Heinz, Abbott’s Executive Order Blocks Release of Violent Inmates on No-Cost Bonds, NBCDFW (Mar. 30, 2020), https://www.nbcdfw.com/news/coronavirus/abbotts-executive-order-blocks-release-of-violent-inmates-on-no-cost-bonds/2341921/.