Empty the Jails Now

Bret Grote

Jails and prisons will inevitably prolong the COVID–19 outbreak and increase the rate of infection. Any rational response to the crisis must include a coordinated national effort to get as many people out of jail as possible — fast.

David Swanson / Philadelphia Inquirer

Interview by
Jonah Walters

In important respects, the COVID-19 crisis has thrown open the doors on what’s politically possible in the United States. With a global pandemic threatening to overwhelm the United States’ already strained public institutions, elected leaders have begun to consider measures that would have previously been politically unthinkable — including greatly reducing prison and jail populations through emergency releases.

As vectors of transmission, jails and prisons will inevitably prolong the COVID-19 outbreak and increase the rate of infection. Any rational response to the crisis must include a coordinated national effort to get as many people out of jail as possible — and fast.

In some places, officials have already recognized the urgency of the situation. In Iran, where the pandemic has been exacerbated by unconscionable US sanctions, officials have (temporarily) released eighty-five thousand prisoners in an effort to save lives. The sheriff in Los Angeles County (which has the largest municipal detention program in the world) has already set free more than six hundred people, and officials in Cleveland have also committed to letting out three hundred prisoners. With the virus moving quickly through New York City’s jail population, Mayor Bill de Blasio has also started opening the cell doors.

A recent survey conducted by Data for Progress suggests that there is substantial support across the ideological spectrum for releasing prisoners in response to the COVID pandemic. About two-thirds of respondents, including more than 50 percent of those who identified as “very conservative,” supported some kind of prisoner release program. Even former prosecutor (and erstwhile presidential candidate) Kamala Harris has called for discharging some federal prisoners.

In Pennsylvania, which has one of the largest incarcerated populations in the country, advocates are pushing for similar measures, focusing especially on the Allegheny County Jail in Pittsburgh. In response to community demands, Allegheny County courts freed 189 prisoners last week. But a coalition of attorneys and activists — including Philadelphia DA Larry Krasner, who has also called for significant releases in Pennsylvania — insist that this doesn’t go nearly far enough.

Last Thursday, Jacobin’s Jonah Walters spoke with attorney Bret Grote of the Abolitionist Law Center in Pittsburgh about how jails and prisons exacerbate Pennsylvania’s public health crisis — and the ongoing effort to get people out from behind bars and harm’s way.

Jonah Walters

Can you lay out the state of the public health crisis in Pennsylvania as it relates to incarceration?

Bret Grote

Because of this country’s lack of a national health care system and its inadequate ability to test patients, the state of the COVID-19 crisis is hard to measure. What we do know is that cases of COVID-19 are picking up throughout Pennsylvania. On March 19, Governor Tom Wolf ordered all businesses that are not “life-sustaining” to be shut down. (I would note that insurance companies were not determined to be life-sustaining, which is a very salient point in the midst of a health care crisis.) Given the spread elsewhere, we know that it’s going to get a lot worse before it gets better.

Incarceration in Pennsylvania was already a public health crisis. There are about 47,000 people incarcerated in the state prison system and tens of thousands more in county jails. If you were to take Pennsylvania’s disjointed archipelago of prisons as a common unit, you’d recognize that the Department of Corrections is akin to the fourth or fifth largest “municipality” in the state.

As far as health care in state correctional institutions, I’ll repeat Gandhi’s quip about “Western civilization”: it would be a good idea. Right now, the Department of Corrections is advising incarcerated people to wash their hands and use bleach (nevermind that things like hand sanitizer aren’t even available). Their current efforts are totally inadequate for stopping the spread.

According to Human Rights Watch, Pennsylvania has the second-oldest prison population in the country. Over 5,400 people (11 percent of the state’s prison population) are serving sentences of  “life without parole” — or, as we call it here, “death by incarceration.” The system’s resources are so strained that, in October, even Secretary of Corrections John Wetzel spoke out in support of releasing lifers, because the DOC is not prepared to provide medical care to its increasingly geriatric prisoner population. Now this virus could easily overwhelm it.

Jonah Walters

One of the most alarming features of this crisis is the juxtaposition of huge prisons and shrunken hospitals. Large prison populations are often located in the areas with the most limited medical services. This problem is especially pronounced in rural areas. And in Pennsylvania, as in many states, state prisons are generally situated in small rural communities, far from urban centers.

In recent years, prisons and county jails have expanded their capacities, while community hospitals have been forced to diminish theirs, sometimes even closing entirely. What could happen to rural health systems even in a relatively contained outbreak?

Bret Grote

I’m not a public health expert. But I’m reading the same information as other people, and it’s clear that our hospital capacity has diminished nationally. There are certainly more prison beds than hospital beds in this country. [This year, the American Hospital Association reported that there are 924,107 staffed hospital beds in the United States; the country’s total prison population is usually estimated to be 2.3 million.] If the government does not reduce the prison population, then the DOC population will be undermining efforts to stem the spread of COVID-19 across Pennsylvania.

Some prisons contain hundreds of elderly people serving “death by incarceration” sentences. (In SCI Phoenix, forty-five minutes outside of Philadelphia, there are between 600 and 700 lifers.) We’re talking about concentrated groups of the very people who are most likely to suffer the disease’s worst effects and require hospitalization.

Either incarcerated people are going to be left in the institutions to suffer and die, without treatment, or they are going to be taken to a hospital in a surrounding community. This disease will overwhelm the infirmaries in state prisons, and it will further strain limited medical resources — hospital beds, respirators — in some of the poorest parts of Pennsylvania.

In rural communities in particular, there is a politically created divide between the prison towns and the disproportionately urban communities of color that provide the raw material for incarceration. This crisis will expose that divide, in a pretty horrific way, as the fiction that it is. When anybody from either of those groups gets sick, the effects will inevitably be felt by all.

There are twenty-five state correctional institutions in Pennsylvania, and hundreds of staff cycle in and out of each of them every day. According to the DOC’s latest statistical report, 14,538 people work in these institutions statewide. Prisons will be incubators of community spread. A prison is like a cruise ship on dry land (but instead of a captain, you have a warden, and the conditions are anything but luxurious). It’s not a question of if, but when.

Jonah Walters

What can be done to start getting people away from prisons and out of harm’s way?

Bret Grote

We need a coordinated national effort to empty the jails. It’s a public health necessity. The longer it takes for this to happen, the worse the outbreak will be everywhere. Whether we consider ourselves abolitionists, or participants in the class struggle, or just people fighting for a world that’s a little more sane, we need to demand that as many people as possible are released from jails and prisons immediately.

I want to stress that when we’re talking about incarceration, we’re also talking about immigrant detention. Now more than ever, we need to counter scapegoating with solidarity. As we empty out the jails, we need to be emptying out the immigration detention facilities, too. (Indeed, in Pennsylvania and around the country, those places are oftentimes one and the same.)

In many respects, county jails must be the front line in this fight. This is because county jails have the easiest release mechanisms at their fingertips. Where I live, in Allegheny County (home to the city of Pittsburgh), the jail population is typically around 2,200 to 2,400 people. As in jails across the country, between 75 to 80 percent of those people have not been convicted of anything. They’re being held on parole detainers [Pennsylvania has the second-highest parole/probation rate in the country, second only to Georgia], or because they can’t afford bail, or because they’re awaiting arraignment on new charges, oftentimes for low-level offenses.

Together, the Abolitionist Law Center, the American Civil Liberties Union, county councilmembers Bethany Hallam and Olivia Bennett, and county controller Chelsa Wagner have called on the Allegheny county executive, Rich Fitzgerald, to utilize his emergency powers (which are quite broad) to kick people out of the jail and close the doors. But the court system itself could just start getting people out of the jail pursuant to the judicial emergency declared by the Pennsylvania Supreme Court — for example, by lifting probation detainers or issuing omnibus orders reducing all cash bail to zero dollars.

Anybody contributing to this advocacy in their own locale should be using high-risk and low-risk metrics to argue for emergency releases. We argue that if someone is at high risk for the worst symptoms of COVID-19, then they need to be out of jail immediately. (If they happen to be facing charges that would suggest their release could pose a risk to life and safety, then some alternative needs to be found that is not the jail.) Then we argue that anyone who is low risk when it comes to public safety also needs to be let out of jail, to limit spread. Releasing prisoners who fall into those two categories is going to get rid of the vast majority of people in any jail in this country.

Jonah Walters

Of course, your demands don’t end at the county level. You’ve also called on the state Department of Corrections to reduce its prison population, including by accelerating parole procedures and extending commutations to aging prisoners.

Bret Grote

Our demands on the DOC are of a piece with our demands on the county. But legal barriers to release are more formidable at the state level.

Still, the governor does exercise executive authority over the Parole Board, and there are measures the Parole Board could take. They should expedite review and release of those prisoners who are already parole-eligible. This should be done by obviating the need for interviews, limiting in-person contact. There should be presumptive parole, and the DOC should work with the reentry organizations to make sure that people can be reintegrated socially in the midst of this crisis.

That said, there’s a huge number of people who are not parole-eligible who also need to be out of prison. I’m talking about the lifer population — people over fifty or sixty years old who, in most cases, have not committed a criminal offense in decades. This is an aging population of people who are not only no risk to public safety but also could be real assets to their communities if released. The governor needs to work with the lieutenant governor and the Board of Pardons to expedite commutations to get these aging and elderly people out of prison.

There is also the executive power of reprieve, long in disuse but still a valid, constitutional power for many governors. A reprieve is a mechanism whereby a criminal sentence is temporarily suspended. In Pennsylvania, Governor Wolf has been exercising his reprieve powers to prohibit executions of death sentences since 2014. There is nothing to suggest that he cannot exercise this same power to temporarily suspend sentences of incarceration and release people to their families in the community in order to relieve the burden on the system, allow for social distancing, and limit the damage caused by the pandemic.

Under the US Constitution, no one can be subject to cruel and unusual punishment. If it is impossible to incarcerate somebody in such a way that you cannot protect their very life — in other words, if the risk of contracting COVID-19 is what we’re told it is — then they need to be released. Our officials need to be considering emergency release measures that would not otherwise be politically feasible. In this case, public health has to be the priority.

Jonah Walters

With the COVID-19 crisis now looming in the background of everything we do, what’s in store for the movement to end mass incarceration?

Bret Grote

If activists are prepared to seize the initiative and be as audacious as the circumstances demand, we may find that we have an opportunity to influence institutions that would otherwise be utterly resistant to us.

Right now, we need to be insistent about the need to get as many people out of prison and jail as possible, as fast as possible. But in the aftermath of all this, we will need to organize to ensure that correctional institutions aren’t filled up again. State resources will need to be directed toward the economic survival of communities that are already being devastated by this work shutdown — a substantial slowdown of global capitalism that is, from all projections, still in its infancy.

As we’re pushing for things like Medicare for All and a social safety net in the aftermath of the COVID-19 pandemic, we also need to insist that institutions of state violence be starved of funds. That’s not only because those funds are limited and need to be going toward life-sustaining measures. It’s also because these are institutions of reaction that are particularly dangerous at a moment like this.

We will soon be encountering a moment when more people than ever before will be impoverished, traumatized, and dealing with the loss of their jobs or loved ones. Most important, these people’s expectations about what it means to live in this country and have their needs met will have been totally upset. More people than ever before will be ready to consider changing absolutely everything.

Everything that I’ve seen from abolitionists has shown that they are lucid and determined and there for their communities in this moment. And that is definitely a bright ray in a darkening time.