USA: will the Coronavirus make us rethink mass incarceration?

On March 14th, Roslyn Crouch, a mother of twelve, left her house in New Orleans to stock up on toilet paper and canned goods, and didn’t return. Crouch, who is forty-two, with slender braids down to her knees, had been feeling anxious about the spread of the coronavirus. At home, she cared for her elderly mother, and for a half-dozen children, including a son with sickle-cell anemia, a blood disorder. She herself had chronic bronchitis, and worried that it put her at risk. Many people in her neighborhood lacked access to high-quality medical care. (Black residents of Louisiana have been disproportionately affected by the pandemic; they make up about thirty per cent of the state’s population, but account for almost sixty per cent of documented deaths from the virus.) She thought, This is some serious stuff. After scrolling through a few too many coronavirus stories on her phone that Saturday morning, she got dressed, spritzed herself with her favorite perfume, A Thousand Wishes, and drove to a dollar store with her two-year-old son, Kyi, to buy shelter-in-place supplies.

On the way, Crouch failed to stop at a stop sign in Jefferson Parish and was pulled over by the police. She was then arrested for a string of petty crimes, including driving without proper registration and with a stolen license plate that police valued at twenty-five dollars. The most serious charge resulted from a nine-year-old warrant for possession of marijuana. As Crouch was put in the back of a police car, with Kyi, she pleaded with the arresting officers to call her daughter Tae, who worked as a security guard. Tae sped across the Mississippi River, arriving just in time to pry her sobbing little brother from the police car and prevent him from being turned over to child-protective services. “I call him Hip Baby, because he’s attached to my mom’s hip,” Tae told me. She took Kyi home, but it was “hell on earth trying to tame him without her.” The cops drove Crouch to the Jefferson Parish jail.

In late March, Governor John Bel Edwards announced that Louisiana had the fastest-growing coronavirus infection rate in the world. According to state reports at the end of last year, Louisiana also had the highest incarceration rate in the country. The pandemic posed an immediate threat in the state’s jails, where cells are crowded and poorly sanitized, and people frequently cycle in and out of custody. Since 2013, the main jail in Orleans Parish has been under a consent decree for what the Department of Justice called “dangerous and unacceptable” conditions, including “inadequate medical care.” Prisons, too, present a contagion risk; they have less rapid turnover than jails, but staff come and go, and large populations and underfunded health services make outbreaks hard to contain. Ben Smith, who served thirteen years in the Louisiana State Penitentiary, commonly known as Angola, remembers how quickly infections passed through the prison each year. Lacking accessible treatment, men devised remedies using instant soup, garlic, oranges, and peppermint leaves. Smith—who now works for the First 72+, a nonprofit that helps people adjust to life after incarceration—worried about his friends who were still inside, among them an older man with Stage IV colon cancer who was nearing parole. “Imagine a prisoner serving a life sentence, with age on him. If he got the virus, would they choose to give him a ventilator?” Smith asked. “It’s a very, very contagious virus. Now you could be sentenced to death.”

At the Jefferson Parish jail, Crouch shared an intake cell with four other women. There were mats on the floor, for sleeping, and the only source of drinking water was a faucet above a toilet without a lid, where some of Crouch’s cellmates, apparently detoxing from drugs, spent the night vomiting. She draped an extra sleeping mat over her body, hoping that it would shield her from germs, but a guard chastised her—one person, one mat, she was told. Crouch asked the guards, “Y’all sure those ladies don’t have the virus?” By the time she reached Tae on the jailhouse phone, she was crying. She told her daughter, “I’ve got to get out of here before this virus gets me.”

For decades, community groups have pointed out the social costs of mass incarceration: its failure to address the root causes of addiction and violence; its steep fiscal price tag; its deepening of racial inequalities. The coronavirus pandemic has exposed another danger of the system: its public-health risks. In April, the American Civil Liberties Union worked with epidemiologists and statisticians to show that, without protective measures in jails and prisons, including rapid reductions in incarcerated populations, the virus could kill an additional hundred thousand Americans. Families of the incarcerated—along with national legal organizations, grassroots groups, and religious leaders—began to push for mass releases, focussing on defendants arrested for nonviolent offenses, those nearing the ends of their sentences, and the medically vulnerable. In Philadelphia, outside the Criminal Justice Center, protesters lined up coffins to mark the coronavirus-related death of a woman who had been eligible to be released in a few months. In Columbus, Ohio, they wore masks reading “20K by May,” the number of releases they were demanding. A team based at U.C.L.A.’s law school started a spreadsheet to track such actions, calling itself the Covid-19 Behind Bars Data Project. By mid-May, it had tallied more than five hundred legal filings and court orders, along with dozens of protests.

Some efforts accomplished in weeks or months what activists had been working toward for decades, leading to large experiments in decarceration. Since mid-March, San Francisco has reduced its jail population by nearly forty per cent, and California has made plans to release thousands of people from state prisons. In New Jersey, the State Supreme Court authorized the release of as many as a thousand detainees from county jails. Each week in April, the federal-prison population declined by around a thousand people; by May, it had reached its lowest level in two decades. In dozens of cities, cops were ordered to make fewer arrests, district attorneys dropped low-level charges, and judges vacated bench warrants for unpaid fines and other minor infractions. “Advocates on the ground have been challenging mass incarceration for so long—and now much of what we’ve been calling for, pre-covid-19, we’re seeing it transpire,” Patrisse Cullors, the co-founder of Black Lives Matter, told me, from Los Angeles, where she’s been organizing for releases with Reform L.A. Jails. “At the local, state, and national level, this is a moment when we can collectively transform how our country relates to the most vulnerable.”

One early push occurred in Santa Clara County, California, where the country’s first coronavirus deaths were recorded. Raj Jayadev runs Silicon Valley De-Bug, a grassroots group that helps incarcerated people devise creative strategies to fight their cases. Some eighty per cent of people in the county jail are awaiting trial, often because they can’t afford bail. At weekly De-Bug meetings, families put together “social biography packets,” stuffed with personal photos, letters, and eight-to-ten-minute videos, to present a fuller picture of defendants. In mid-March, as the virus spread, Jayadev worked with Carson White, an attorney with the public defender’s office, who compiled a list of people seeking release from the county jail. White negotiated with prosecutors, the sheriff’s office, and pretrial services, and an agreement was reached to shrink the jail’s population by twenty per cent. On March 19th, the county released an initial group of about a hundred and fifty people. Since then, the jail’s population has been reduced by more than a thousand. “This moment has flipped the script on mass incarceration,” White told me. “It’s laid bare that caging huge swaths of our society isn’t necessary—it’s just convenient.”

Even after mass releases began, Jayadev feared that many defendants were being “left off the rescue boat,” particularly those charged with felonies. “Just because someone has been accused of a crime with a higher bail schedule doesn’t mean they deserve a potential death sentence,” he said. With court systems shutting down because of the pandemic, it was harder to advocate for defendants. “I don’t even have access to my clients right now—that whole system is out the window,” White told me, in March. Normally, she could bring a defendant before a judge within two days of filing a motion; now a client’s only chance for release was a prosecutor’s mercy. (In April, the county court in Santa Clara began hearing a limited number of cases, with a focus on defendants with a strong likelihood of release.) Many clients had agreed to attend drug-treatment or mental-health programs as a condition of their release, but the programs had been suspended. White had a ninety-one-year-old client with dementia who had been arrested following an outburst in his home; he was being held in the jail’s infirmary with at least one coronavirus patient. “My in-box is full of heartbreaking e-mails from community members asking if our office can help release their sister with asthma, their father with emphysema, their fiancé awaiting a lung biopsy,” she told me.

Jayadev was working with Johnny Page, who was being held in the Elmwood Correctional Complex, in Milpitas, California, awaiting trial on drug charges. “He has Type 2 diabetes and he’s not taking his insulin shots,” Rebecca Rivera, the mother of his child, told me; several sheriff’s deputies had tested positive for covid-19, and Page refused to enter the common area of the jail, where medical staff administered the shots, because he’d noticed unsanitary practices there. “My son keeps asking, ‘Is Dad O.K.?’ ” she said. Page called her daily, with updates: men were shackled in dirty chains; they slept in bunk beds a few feet apart. Rivera jotted down notes—“The inmates are starving as they have not been allowed canteen for two weeks”—and urged Page to organize.

In late March, I spoke with Page on the phone. He and other men on his cellblock had drawn up a list of fifteen grievances. Since covid-19 hit, the commissary had shut down, and the men could no longer buy meals, soap, Tylenol, or stamps and stationery to communicate with their families. (The phone service at the jail is run by a private company that charges steep fees.) Food was being delivered by people who had touched potentially contaminated surfaces. He asked if he could read me a statement. “We, the inmates in this county jail, want the public to know that we are human,” he said. “We are undergoing treatment that is inhumane and unjust.” Without swift depopulation of the jail and other protective measures, he went on, “the virus will spread like a California wildfire.” In the weeks that followed, officials instituted reforms, which included distributing masks and agreeing to a health inspection. On April 18th, after California temporarily suspended cash bail for those charged with most misdemeanors and nonviolent felonies, Page was released. He is now working with Silicon Valley De-Bug to help people still trapped in jails. “By far, the most effective driver of change right now has come directly from those locked up, on the inside,” Jayadev said. “Their voices, their demands for survival.”

On March 16th, at Crouch’s red brick home in New Orleans, where pink azaleas were on the verge of blooming, Tae managed to rustle up the money for her mother’s bail—nearly four thousand dollars. Crouch would be free by dinnertime; she could watch Lifetime that evening, curled up with her kids. But Crouch called her daughter in the afternoon. “I’m not getting out,” she said. She was being transferred to the jail in Orleans Parish, a neighboring jurisdiction, for reasons she didn’t understand. “I don’t even know why I’m here anymore,” she said. Tae promised to investigate, but, when she called officials at the jail and other authorities, “all I got was closed doors and brick walls.”

Even by mid-March, as infection rates began to soar, Orleans Parish resisted public pressure to reduce its jail population. Police officers continued to make arrests for nonviolent crimes, including graffiti, failure to return a rental car, and obstructing sidewalks. In bail hearings, when public defenders raised the threat of covid-19, the district attorney’s office accused them of trying to “exploit” the coronavirus to benefit their clients. “This is hardly a time to encourage lawlessness,” the D.A.’s spokesperson told the press. Prosecutors opposed some bond reductions, especially for defendants without a home address, arguing that, if they were released, they would “pose a threat to the general public by potentially spreading the virus to others.” This logic was pernicious; according to an open letter written by the dean of Tulane’s public-health school and other experts, the longer the parish delayed releases, the more genuine the threat of mass infection in the jail was—and thus the more likely it would be to spread to the public. (The D.A.’s office said that it has instructed prosecutors to stop making this argument in bond hearings.)

As coronavirus cases mounted in Louisiana, incarcerated people often had no access to their lawyers. At several juvenile-detention centers, minors were kept in lockdown or solitary confinement, ostensibly for their protection. The mother of a sixteen-year-old boy detained in northern Louisiana told me, in April, that the facility did not respond to her e-mails and calls. “It’s been a whole month, and I don’t know if my child is dead or alive, sick or healthy,” she said. Another woman reached out to Voice of the Experienced (vote), a local nonprofit, for help in finding her mother, who had tested positive for covid-19 in a state prison and then been shuffled to an unknown location, where her lawyer couldn’t contact her. “where is my mother!!!??? is she ok!?” she wrote, in a note that vote posted on social media. “That’s all we want to know. That’s it. Let me hear her voice! Anything!!!”

Tae worried about her mother’s transfer to Orleans Parish, and eventually got in touch with Thomas Frampton, a public-interest lawyer and a lecturer at Harvard Law School. Ordinarily, Frampton would have been on campus, teaching Legal Research and Writing to first-year students. But his class now met on Zoom, and he was in New Orleans, where he lives part time. Frampton started looking through court records and found that Crouch had a four-year-old material-witness warrant out for her arrest in Orleans Parish.

Material-witness warrants allow law enforcement to arrest and jail someone who hasn’t been accused of a crime—and may even be the victim of the crime in question—in order to insure her testimony. At the time, the Orleans Parish D.A., Leon Cannizzaro, routinely jailed domestic-violence and sexual-assault survivors as material witnesses, to secure their testimony against their alleged abusers. (In 2017, the A.C.L.U. and Civil Rights Corps sued the D.A.’s office over the practice, and the case is pending in federal district court.) Frampton found that, in 2016, an Orleans Parish prosecutor had requested a material-witness warrant for Crouch, to compel her testimony in the trial of a man accused of shooting one of her friends. The defendant was acquitted, rendering the warrant moot. Still, the D.A.’s office pressed a judge to keep it open. (A spokesperson told me that the warrant was the result of a “clerical error”; the prosecutor had intended to request a contempt-of-court warrant, which is more commonly held open after a trial.)

Instead of setting Crouch free, deputies at the Jefferson Parish sheriff’s office detained her for two more nights, then sent her to the Orleans Parish jail, called the Justice Center. Frampton worried that, with the courts closed, securing Crouch’s release could prove unusually complicated. Her bond had been set at a hundred thousand dollars. On March 19th, Frampton visited her at the jail. By the time he arrived, she’d fallen ill: her body ached and she had a bad cough. Hand sanitizer is banned in many jails and prisons. (Administrators argue that inmates will drink it, or use it to start fires.) Frampton stuffed an antiseptic wipe through an opening in the glass divider so that Crouch could disinfect her hands after wiping her runny nose.

Activists were heartened by the initial wave of mass releases this spring. But optimism gave way, for some families, to panic and indignation, as many facilities delayed reducing their populations and instituting safeguards, and coronavirus outbreaks began. At the end of March, by the time New York City released some six hundred and fifty people from Rikers Island, its main jail, the infection rate there was already seven times higher than in the city’s general population. The jail’s chief physician called it “a crisis of a magnitude no generation living today has ever seen.” In Chicago, the Cook County Jail, which is fighting a judge’s social-distancing order, has now recorded nine hundred cases among detainees and staff, and ten deaths. (One of the staff deaths was that of a sheriff’s deputy at a suburban courthouse.) Detained men held strikes to protest the lack of safety precautions, and placed handmade signs in their windows reading “Help us, don’t let us die.”

For those in New Orleans, the pandemic brought to mind how, in 2005, Hurricane Katrina ravaged the Orleans Parish jail. As the storm descended, many staff members fled, leaving behind some sixty-five hundred people—including minors—locked up without food, water, or ventilation. Gina Womack, who runs Families and Friends of Louisiana’s Incarcerated Children, told me, “People in prisons, especially kids, were an afterthought.” Although there was no official death count after the storm, Human Rights Watch later reported that more than five hundred incarcerated people were not accounted for; many who survived described beatings by staff and cellmates, and infections from contaminated floodwaters. According to a report by the Juvenile Justice Project of Louisiana, when detained children were finally evacuated, a few days later, on floating mattresses, some were so hungry that they tried to scoop up bits of food drifting by in the water. (“One boy found some dog snacks,” the report read.) In the storm’s aftermath, Womack felt that the city “never took the necessary steps to divest from prisons, and invest in our children and our communities.” As a result, when covid-19 arrived, people in the Orleans Parish jail were “sitting ducks.”

Along with other activists, Womack attended Zoom strategy sessions to discuss mass releases, and encouraged parents with incarcerated children to call politicians and the press. The Orleans Parish Prison Reform Coalition sent more than three hundred letters to elected officials. “This virus may not be as visible as floodwaters, but it’s just as deadly,” Sade Dumas, who runs the group, said. The city initially resisted, but, on March 26th, the sheriff sent a letter to criminal-court judges, asking them to “give consideration to releases, even on a temporary basis, of any non-violent individuals without a prior criminal history.” The D.A. also stopped opposing most bond reductions and releases. By the last week of March, the Orleans Parish jail population had dropped by nearly a quarter, to below eight hundred, its lowest level in decades. The D.A.’s office wrote to me that “only a tiny fraction of those still inside have been jailed for non-violent offenses.” This was a remarkable shift, one that Frampton had assured me wouldn’t happen “until hell froze over.”

The Louisiana Department of Public Safety and Corrections, meanwhile, set up a panel that would review the cases of certain people in state prisons seeking temporary release. Frampton took on the case of Candice Bowie, who contracted covid-19 in Louisiana’s Elayn Hunt Correctional Center, in April, when she was eight months pregnant. Some eighty-five per cent of the women at the prison had tested positive for the virus, and two inmates in her housing block had died. She was scheduled to give birth by C-section. Frampton successfully lobbied for her release. On May 4th, he and Kelly Orians, who works for the First 72+, the organization that eases reëntry into society, filled a rental car with balloons, created a makeshift divider out of duct tape and a plastic tarp, and drove to pick Bowie up. (When they arrived, the guard mistook them for morticians.) On her way to the hospital to deliver her son, the next day, Bowie called me. “I didn’t want to give birth with a prison guard beside me, but I’d mentally prepared to harden my heart to it,” she said. “Now I’m excited … I wasn’t trying to die in there!”

Kisha Edwards, who works for the First 72+, told me that those who are released still face circumstances that are “surreal and devastating.” Jobs, especially for those with criminal records, are almost nonexistent. To receive food stamps, you need an I.D., but the office that issues such documents is closed. Many homeless shelters, which often house the newly released, are also closed. Edwards had a client who was let out after ten years in prison but whose mother was hesitant to take him in, for fear of infection. He found a job with a small business, but got laid off soon afterward because of the shutdown. “So now he’s homeless,” she said. Released parents face additional hurdles. “Mothers want to be reunited with their kids,” Edwards said. “But if they can’t get a job that means they can’t get a place to live, which means they can’t get their kids back.”

Many people risk ending up on the streets. Steven Berrier, a sixty-year-old man who served thirty-five years in prison, was released late one night in mid-April, with a pair of prison jeans, a blue shirt, and sneakers a half-size too small. “I had eleven dollars and a bus ticket,” he told me. With no family to take him in, he spent the first night sleeping on a bus-stop bench. A few days later, he found out about the First 72+. Edwards took him to Walmart and bought him some new clothes, a cell phone (which made him feel like a “baby with a new toy”), and a face mask. He’s been self-quarantining in a hotel room outside of New Orleans that the group rented for him for two months. “To have assistance and a helping hand, that’s really something special,” he said. Still, some nights he lies in bed worrying about what will happen when his time there runs out. “Nobody’s hiring in this pandemic, and you can’t mingle or meet people, so I’m lost out here,” he told me. “I just want to earn an honest living, and have a roof over my head—those aren’t wants, those are needs,” he said. “People have killed themselves over things like this.”

When Thomas Frampton visited Crouch at the Orleans Parish jail, he confronted an officer, pointing out that the warrant on which she was being held was four years old and, he believed, illegitimate. “I absolutely created a scene,” he told me. A sheriff’s deputy called a judge, who agreed that Crouch should be released. “That’s a lesson of the moment—that people are seeing the urgency, and that a whole range of actors stepped up to insure Ms. Crouch’s release,” Frampton said. Shortly after 5 p.m. on March 19th, Crouch walked out of the jail and asked a stranger if she could borrow her cell phone to call her family. “My kids started to cry when I got home,” Crouch told me. “I made them baked macaroni and barbecued chicken.”

Crouch felt lucky to be free. But she had grown sicker: her aches and shivers had increased, and she had lost her sense of smell. A few days after her release, she found out about a local drive-through clinic that did covid-19 testing, but to get a test one had to have a state-issued I.D. Her arresting officers had confiscated hers and forgotten to return it. Her daughter Tae drove her there anyway, and they waited for an hour, but Crouch was not able to obtain a test. At home, she tried to self-quarantine in her bedroom. She quickly realized that, when you care for young children and an elderly parent in a small house, “it’s not happening.” The week after Crouch’s release, she told me that her toddler had a fever. “So my baby’s sick, and I don’t want my mama to get sick,” she said.

When she was released, the parish jail was still full of people who couldn’t afford bail. At the end of March, according to the Orleans Public Defenders, more than two hundred people were still being held “on felonies that are NOT crimes of violence.” A month later, more than a hundred people in the jail had tested positive for covid-19, and two sheriff’s deputies had died. State and federal prisons followed a similar trajectory. In mid-May, according to the Times, seven of the top ten case clusters in the nation were in prisons and jails, including Marion Correctional Institution, in Ohio (2,439 cases), and the Trousdale Turner Correctional Center, in Tennessee (1,284). At Oakdale, in Louisiana, where the first federal prisoner died from covid-19, the death toll has now reached at least eight. The A.C.L.U. unsuccessfully sued the prison, seeking the release of vulnerable people. “Imagine if someone sick with covid-19 came into your home and sealed the doors and windows behind them,” the complaint read. “That is what the Oakdale federal detention centers have just done to the over 1,800 human beings currently detained there, where a covid-19 outbreak is rampant, social distancing is impossible, and no one detained can leave.” Recently, Louisiana prison officials revealed a controversial plan: incarcerated people across the state who tested positive for covid-19 would be transferred to units at Angola and the Allen Correctional Center, which critics worry will cause large outbreaks in those facilities.

Local organizers are ramping up their fight. The Orleans Parish Prison Reform Coalition is pressing for an agreement from police to reduce arrests. Court Watch NOLA, a watchdog group, is pushing for court proceedings, now held on Zoom, to remain accessible to the public. Bruce Reilly, at vote, has been encouraging his staff to use the trauma of the moment to effect lasting reforms, including an end to incarceration for people too poor to pay court fees, less zealous use of solitary confinement, and fairer parole policies. “We need to make sure that when people realize the house is on fire—when they’re looking for firemen, for water, for a way out—that they know we’re standing right there, ready to help,” he said. Frampton has been thinking about “The Shock Doctrine,” Naomi Klein’s book from 2007, in which she argues that large-scale catastrophes—wars, floods, terror attacks—tend to favor “disaster capitalists,” who use chaos to enact policies that serve private enterprise. He reminded me that one of Klein’s case studies was New Orleans in the aftermath of Katrina: in a short period of time, a range of schools, hospitals, and public-housing complexes were privatized, at the expense of the poorest residents. “The city was fundamentally remade,” Frampton said. “I’m really hoping that this moment can be like ‘Shock Doctrine’ in reverse—a chance to build on the growing consensus that our current model for criminal justice needs to be entirely rethought, since it isn’t making our communities any safer or healthier.”

Roslyn Crouch has a similar hope for her city, but she wonders how many incarcerated people will die before any such changes take place. If she ever crosses paths with the Orleans Parish D.A., she knows what she will tell him. “I want to thank you for getting me out of the dog cage,” she said. “But, Lord, there are other things for you to worry about right now, instead of harassing people for petty-ass shit.”