Omicron is creating new havoc in our criminal justice system

Just over a year ago, a national commission we led put forth a sweeping set of solutions for a criminal justice system wracked by COVID-19. Today, with the Omicron variant spreading nationwide, we believe those recommendations are more urgent than ever — and can help rebalance public health and safety to forge a better post-pandemic future.

In the months that have passed since the report from our National Commission on COVID-19 and Criminal Justice, many justice system leaders have continued to make laudable progress in mitigating the pandemic’s effects, using technology, innovation and their own talents to adapt and adjust policies and practices for the better. 

The Biden administration’s decision to allow thousands of nonviolent offenders released from federal prisons because of the COVID threat to remain on home confinement is one recent and sensible example, especially because many of those affected were near the end of their sentences.

In another low-profile but high-impact development, leaders in the nation’s probation and parole agencies tell us that the pandemic switch to mostly remote supervision has improved the human connection between officers and the hundreds of thousands of people they oversee, who, by and large, have not absconded as some had feared. In many states, this is a positive change that’s here to stay.

Yet major problems persist across the criminal justice system, and in some ways have intensified. Omicron is causing renewed disruptions, with detainees at New York’s Rikers Island jail protesting what they call dangerous conditions, and California prisons reporting a “staggering rise” in infections among employees. Systemwide, prison and jail populations that had been safely reduced to contain the virus are rebounding, posing renewed risks to incarcerated people and staff.

And in our courts, operations have been slowed by crushing case backlogs. In Fulton County, Ga., home of Atlanta, the number of backlogged cases surpassed 11,000 — in a state with a backlog of 206,000 — including approximately 600 murder cases awaiting trial. In Seattle, a judge estimated that even excluding nonviolent cases, it would take 13 years to clear the logjam.

These and other ongoing challenges are clear signals that we must do more to meet this moment — and ensure our post-pandemic system is better equipped to balance health, safety and justice for all.

Convened by the nonpartisan Council on Criminal Justice, our independent commission brought together a diverse range of perspectives and experience — justice system leaders, a mayor, advocates, a leading researcher, a formerly incarcerated individual, and a top public health specialist. Our recommendations reflected not just our own expertise, but also testimony from a broad spectrum of criminal justice organizations, researchers, advocates, and others, including people recently released from prison.

In our final report, we concluded that a lack of planning had left corrections, courts, law enforcement and community-based organizations insufficiently prepared for a large-scale public health crisis. The consequences rippled far and wide — and were perhaps most perilous for incarcerated individuals and custodial staff. The COVID-19 mortality rate within prisons was double the rate for the general population, with some states reporting prison death rates as much as seven times higher. 

As our report noted, the size and scope of the system — 1.8 million people behind bars and another 4.4 million on probation or parole — posed a significant obstacle to controlling COVID’s spread. Given that, we again urge leaders to reduce the system’s density in a responsible manner.

For law enforcement, that means issuing warnings or citations in lieu of arrest for crimes that do not pose a threat to public safety. In correctional settings, officials should expand mechanisms that permit medically vulnerable people in prison to petition for release. While widely available, compassionate or medical release policies are rarely used, largely because of strict eligibility requirements and time-consuming review processes.

Officials should also consider adopting protocols that would permit nonviolent offenders to petition for their release during public health crises that involve communicable illnesses, when facility crowding reaches certain levels and during other circumstances that might pose serious threats to safety and health. Research on jail releases conducted for our commission provided some reassurance on possible public safety effects, finding that rebooking rates for those released during the pandemic were below pre-pandemic levels.

New Jersey is one state that has enacted a law creating a systematic approach to reducing population density during public health emergencies. Under the statute, adults and juveniles within one year of their release are awarded four months off their sentence for every month served during an emergency arising from an infectious or communicable disease.

More than 5,300 people were initially released — with certain serious offenses excluded — and the prison population was cut by 40 percent. With COVID cases surging in the state last month, Gov. Phil Murphy declared a new public health emergency, authorizing further reductions.

Like leaders in other sectors of society, those operating our criminal justice system have faced formidable challenges from a viral foe they never saw coming. Despite that, they’ve adapted — often without clear guidance or reliable data — to keep the wheels of justice turning.

Let’s build on those accomplishments — and do even better.

Amid the broader challenges of the pandemic, it can be easy to forget that a fair, effective criminal justice system is a core measure of our democracy, and essential to the safety and health of all of us.

Alberto Gonzales served as U.S. attorney general under President George W. Bush and is now the dean for Belmont University College of Law. Loretta Lynch served as U.S. attorney general for President Barack Obama and is a partner at Paul, Weiss, Rifkind, Wharton, and Garrison. They are co-chairs of the National Commission on COVID-19 and Criminal Justice.