COVID changed our prison systems — we must not go back

Over the last several decades, the United States earned the title of “incarceration nation.” From 1980-2020, this country led the world in sending people to jails and prisons and incarcerated a larger share of our population than any other country.

Today, about 25 percent of the world’s total prison population is in the United States. Among the states, Alaska, Mississippi, Louisiana, Arkansas and Oklahoma incarcerate the most people per capita.

But, in recent years, things began to change. According to The Sentencing Project, a non-governmental organization that tracks prison populations, “By year end 2021, the U.S. prison population had declined 25% since reaching its peak in 2009.”

Several things contributed to that change, including decreases in crime rates, changes in drug policies, and worries about the financial cost of keeping large numbers of people in jail.

The COVID pandemic certainly accelerated the decline in the rate at which this country put people behind bars. It led states and the federal government to release non-violent offenders in order to limit the spread of disease among incarcerated populations.

A Harvard University study points out that “Between 2020 and 2021, the overall prison population decreased by 17.3 percent.” It notes, “During the height of the COVID-19 pandemic, the U.S. experienced a historic reduction in prison population as admissions declined and many incarcerated people were released — both routinely and as part of state and federal public health strategies to decrease spread of the virus.”

Crime rates fell even as people were let out of jail and fewer were arrested, and COVID gave public officials a chance to change the narrative about incarceration in the United States.

With the official end of the pandemic, this country now faces a choice: whether to resume its love affair with incarceration or to chart a new path.

Some states have already taken advantage of COVID and what they learned from the pandemic, inspiring the release of inmates to close prisons and shifting their thinking about incarceration.  Others should follow their lead.

Take California, which, despite its liberal reputation, is second only to Texas in the size of its prison population. In March of this year, Democratic Gov. Gavin Newsome announced that “San Quentin State Prison — the oldest and most notorious prison in California and home to the largest ‘death row’ in the United States — will be transformed from a maximum-security prison into a one-of-a-kind facility focused on improving public safety through rehabilitation and education.”

Such an announcement would have been unthinkable at the height of the tough-on-crime, “lock ‘em up and throw away the key” era.

As a press release from the governor’s office explained, “The historic effort at San Quentin, never pursued at this scale in the United States, will serve as a nationwide evidence-backed model to advance a more effective justice system that builds safer communities.”

Moreover, according to the state’s Department of Corrections and Rehabilitation, during the pandemic the prison population fell from around 110, 000 in 2020 to about 95,000 in 2023. This decline signals “a sea change in California criminal justice, representing the wind-down of the tough-on-crime policies that packed prisons in the 1990s.” 

In New York, the total inmate population in prisons and jails experienced a decline during the pandemic from 64,306 in 2019 to 47,003 in 2022 — a 26.9 percent drop in three years. Last year, the Empire State closed six state prisons that together had an “occupancy rate” of under 44 percent. Closing those prisons will save the state around $140 million per year.

The New York Post reports that “Other blue states in the Northeast have also seen big drops in the number of incarcerated people, including Massachusetts and Connecticut, which respectively saw 24.3% and 21.3% drops between 2019 and 2022.”

Late last month, the state of Washington supplied more evidence of a post-COVID change in its approach to punishment when it announced its intention to close one of its minimum security prisons — the first time it has closed a prison since 2011.

According to its Department of Corrections, “Prison populations have declined in Washington in recent years, a trend … [that] will accelerate over the next 10 years. Only 70% of beds are occupied in the DOC’s 12 prisons across the state of Washington.”

While Southern states generally resisted reductions in prison populations during COVID, in bright-red Mississippi, which has long had one of this nation’s highest incarceration rates, the prison population has fallen starting before and continuing through the pandemic. In January 2014 it “was 21,008. By January 2022, that figure had declined by almost a fifth to 16,931.”

But the story of the COVID slowdown in incarceration is not an entirely happy one for advocates of prison reform. Not surprisingly, it exacerbated the racial disparities that have long plagued the American prison system, where Black men are six times as likely to be put in jail or prison than are white men.

Professor Brennan Klein and his colleagues found that “White incarcerated people disproportionately benefited from the (COVID) decrease, while the percentage of prisoners of color spiked.”

And there are other worrisome trends. As the pandemic fades and COVID reductions in imprisonment end, prison populations in many places in the United States are beginning to creep back up.

But it is not too late for public officials to avoid going back to the old ways of using incarceration as the primary policy response to crime. They should take advantage of growing agreement among liberals and conservatives that putting people behind bars is extremely costly, contributing to budget crises in state after state.

While liberals tend to emphasize racial justice as a reason to limit incarceration, leading conservatives see “the expansion of prisons as a case of big government run amok.” Alongside Newt Gingrich, they are urging Americans to rethink how we use imprisonment. During COVID,  people on both sides of the political aisle learned that, as Professor Carrie Leonetti observes, “much incarceration is unnecessary.” 

In the end, if one good thing can come from the pandemic, it is the lesson that this country needs to use incarceration less and shed the “incarceration nation” label. Instead, it should focus on social policies and law enforcement strategies that do more to keep Americans safe and benefit the citizens of this country more broadly.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not represent Amherst College.