COVID-19 and the Criminal Justice System: A Guide for State Lawmakers

8/19/2020

COVID-19

COVID-19 has affected the lives of individuals all around the globe. The American criminal justice system is an area that has seen significant impact. Every point of the system has been touched by this virus and states have taken a variety of actions to address the risks. These changes have been undertaken to protect everyone who touches the justice system, whether they are justice-involved individuals or those who work in the justice system.

In particular, states have tried to reduce involvement with the justice system and limit person-to-person interactions, whether with law enforcement, in courts, in jails and prisons, or with community supervision officers. Many of the actions highlighted in this brief were made possible because the statutory framework is already in place to support the changes.

Law Enforcement

On a daily basis, law enforcement officers have face-to-face interaction with citizens. These interactions can result in exposure to the virus for the officers and the people they encounter.

Many departments have expanded citation in lieu of arrest policies or limited arrests within already established statutory limits. Citation in lieu of arrest allows an officer to give someone an order to appear in court or pay a fine rather than be taken into custody. While this still results in direct interaction between an individual and a law enforcement officer, person-to-person contact is much less than if someone is arrested and booked in jail.

Colorado’s statute allows for citation in lieu of arrest for most misdemeanors and petty offenses. Police in Denver and Boulder limited the number of people they arrested for low-level crimes in order to reduce the likelihood of coronavirus being brought into the jails. Denver’s police chief said that officers would “default to issuing a summons instead of arresting people suspected of low-level, non-violent property and drug crimes,” according to an interview with The Denver Post.

The Centers for Disease Control and Prevention also issued guidance for law enforcement personnel related to COVID-19. The recommendations include having an emergency medical technician assess and transport people who might have COVID-19 and ensuring that only trained personnel in appropriate personal protective equipment (PPE) have contact with people who have or may have the virus.

Courts and Pretrial

Courts at every level have postponed or canceled proceedings in response to the spread of coronavirus. In the beginning of the pandemic, the U.S. Supreme Court postponed oral arguments and held oral arguments by telephone, making live audio of the arguments available to the public for the first time ever.

The legislature in Kansas enacted a law giving the state Supreme Court’s chief justice the authority to “extend or suspend any deadlines or time limitations established by statute when the chief justice determines such action is necessary to secure the health and safety of court users, staff and judicial officers.” The legislation also gave the chief justice the power to allow the use of two-way electronic audio-visual communication in court proceedings. Ohio’s legislature enacted a law tolling statutes of limitations for criminal offenses, civil actions and administrative actions that were set to expire between March 9, 2020 and July 30, 2020.

Tracking from the National Center for State Courts shows that states including Alabama, Alaska, Rhode Island and Vermont have restricted jury trials though September and a number of states have restrictions in place without a set end date.

State courts and local governments have taken steps to release individuals who may otherwise be held in custody before trial. In Kentucky, for instance, nearly twice as many people were released pretrial  between April 15 and May 31, 2020 as were released in the same time frame in 2019.

About half the states, including Kentucky, have a statutory presumption of release on recognizance for at least some defendants. In April 2020, the Kentucky legislature enacted HB 356 allowing the state’s chief justice to declare a judicial emergency to protect court employees, officials and the public. The court then issued an order creating an emergency administrative release schedule that expanded the use of release on recognizance. The initial order has since been extended.

According to Kentucky Supreme Court Chief Justice John Minton Jr., “the re-arrest rate for defendants released by pretrial services [during this time] was 4.6%,” matching the rate for the same time period in 2019. Learn more about justice responses for pretrial release and jails here.

Fines and Fees

Prior to the emergence of the coronavirus, legal financial obligations and fees policies were gaining attention in state legislatures. The Fines and Fees Justice Center’s policy tracker includes changes made in response to the virus. Most changes have been made at the local level but there has been some state-level action.

In California, for example, the franchise tax board announced the suspension of collection of court-ordered debt through July 15, 2020. Colorado’s governor ordered the state’s public safety department to use funding to suspend $17 per day room and board payments required from people on probation and parole who are living in community corrections residential facilities.

A large coalition of groups issued a Call for a Nationwide Moratorium on Juvenile Fees and Fines beyond the specific risks that the COVID-19 pandemic poses, stating that “charging fees and fines to youth in the juvenile system and their families is counterproductive: it undermines youth rehabilitation, increases youth recidivism, and nets little or no government revenue.”

Prisons and Jails

According to tracking from The Marshall Project and Associated Press, as of Aug. 11, at least 95,398 people in prison tested positive for COVID-19 and 847 people died as a result of the virus. There have also been at least 21,103 cases among prison staff and 65 deaths. Tracking from The New York Times places the number of cases in prisons and jails at more than 140,000, with a number of correctional facilities identified as coronavirus hot spots during the pandemic.

Social distancing or taking other precautions in correctional settings is very difficult, if not impossible. Facilities are at capacity. That means shared cells, double or triple bunking, and limited space to spread out. Further, access to items such as soap, hand sanitizer, or face masks that could help prevent the spread of the virus come at a cost and are in short supply.

Early in the pandemic, state corrections departments and local jails limited the intake and transfer of individuals. Mississippi had stopped transferring inmates from county jails to state prisons and between prisons but announced plans to resume transfers in mid-June in a “limited, controlled, and safe manner.”

Beginning in mid-March, every state took action to limit visitation at correctional facilities. At least 17 states and Washington, D.C., suspended all visitation and the remaining 33 states suspended normal visitation while allowing visits with attorneys. Georgia extended the ban on visitation through August 12th.

Many state corrections departments and local jails provided free telephone calls and other methods of communication given the limits on visitation. Florida, for instance, offered two free phone calls for up to 15 minutes and two free emails for each inmate per week and one free video visitation.

Generally, corrections departments charge a co-pay for medical treatment for individuals in their custody. During the pandemic, some states suspended these co-pays entirely and others suspended them for respiratory, flu-related or COVID-19 symptoms. The Prison Policy Initiative, an advocacy organization, tracked these changes here.

Release

In addition to efforts to minimize the spread of coronavirus in correctional facilities, some states have taken steps to reduce the number of people who are incarcerated via preexisting release levers, particularly those who are at risk, such as elderly and medically vulnerable people.

Nearly every state has a policy allowing inmates with certain serious medical conditions to be eligible for parole, sometimes referred to as medical parole or compassionate release. In 45 states, the authority for the release of these inmates has been established in statute or state regulation. Additionally, at least 17 states have geriatric parole laws in statute, allowing consideration of release of inmates when they reach a specified age. More information on these laws is available here.

A resolution adopted in Louisiana requests that the department of public safety and corrections study the impact of the pandemic on the department’s operations. The study should pertain to the “safety and security of inmates and staff at its facilities, as well as the feasibility of releasing nonviolent offenders and its impact on mitigating the spread of COVID-19, and to report the number of inmates and staff that have died as a result of COVID-19.” According to a news article, a review panel created to consider the temporary release of up to 1,100 people reviewed fewer than 600 cases. Of those 600, the panel approved 100 people for release, 63 of whom will be released.

Alabama introduced but did not pass legislation that would have required the commissioner of corrections to identify incarcerated individuals at high risk of severe complications from COVID-19 and release some to community supervision or home detention. Tracking of state action related to prison releases can be found here.

Community Supervision

Community supervision, encompassing both probation and parole, is another area where states have made changes to address the impacts of COVID-19.

State agencies have used flexibility in statute to administer supervision conditions. Some of these changes have included limiting in-person check-ins and other conditions that require direct person-to-person interaction. Legislation enacted in Louisiana this year provides alternatives to in-person meetings, including using cell phones for voice and video communications.

Another change limits using incarceration in response to technical violations. A technical violation means the person under supervision did not comply with a supervision rule; for instance, being late for or missing a meeting with a supervision officer or failing a drug test, rather than committing a new crime. In New York, Governor Andrew Cuomo ordered the release of 1,100 people held for non-serious technical violations of parole early in the pandemic; as of June 8, 898 people were released. States legislatures have passed legislation in recent years to limit the use of incarceration for these technical violations.

The Pew Charitable Trusts’ public safety performance project, in partnership with Arnold Ventures, released a policy framework for community supervision in April 2020. Some of the changes made by states in response to the pandemic fit within the goals of this policy framework, including establishing effective and appropriate supervision conditions and reducing the use of and pathways to incarceration.

Similarly, a statement from EXiT: Executives Transforming Probation & Parole recommended changes be made in response to the pandemic. They include limiting office visits, suspending or severely limiting technical violations, reducing placement on supervision, reducing the terms of supervision, and training staff to provide clear, accurate and understandable information to individuals under supervision. 

Learn more about justice responses for community supervision and EXiT’s tracking of policy responses to the virus.

Federal System and Federal Action

In the Coronavirus Aid, Relief, and Economic Security (CARES) Act, $850 million dollars was allocated to the Byrne JAG program and $2 million for justice information-sharing technology. The legislation also provided $100 million in emergency funding for the Bureau of Prison’s COVID-19 response.

The director of the Bureau of Prisons was also required to develop rules “regarding the ability of inmates to conduct visitation through video teleconferencing and telephonically, free of charge to inmates” during the emergency. Information on the response of the federal Bureau of Prisons can be found on its webpage.

Learn more about federal agency responses and congressional appropriations.

Moving Forward

Coronavirus has affected every part of the justice system and the individuals responsible for the system have had to take steps to respond to this impact. Tracking the outcomes of these changes is of particular interest to legislatures in order to gauge the public safety impacts of criminal justice reforms that were implemented in response to the pandemic.

This report was prepared under a partnership project of the National Conference of State Legislature’s Criminal Justice Program in Denver and The Pew Charitable Trusts’ public safety performance project, Washington, D.C.