Former attorneys general: Criminal justice reform vital to slow spread of COVID-19

Virtually overnight, COVID-19 laid bare our nation’s alarming vulnerability to a large-scale public health emergency, causing wrenching damage in all corners of American life. Fast-moving and deadly, the coronavirus has placed enormous pressure on our criminal justice system — our jails and prisons, courts and law enforcement agencies.

Here’s one disturbing snapshot: five states have a prison mortality rate more than eight times the rate for the general population, after adjusting for the sex, age and race or ethnicity of those incarcerated.

As former U.S. attorneys general, we are acutely familiar with the challenges facing our justice system, even in normal times. COVID-19 has raised the stakes significantly, and as the fallout intensified, we took on the task of co-chairing the National Commission on COVID-19 and Criminal Justice to help the system curb the pandemic’s impacts and increase its readiness for future emergencies.

Launched by the Council on Criminal Justice, the 14-member commission is independent and nonpartisan. It inclu—des a broadly diverse range of perspectives and experience  — justice system leaders, a big city mayor, advocates, a leading researcher, a formerly incarcerated individual and a top public health specialist.

For the past two months, we have worked quickly to gather data and assess COVID-19’s effect on the justice system with the goal of producing fact-based guidance that helps leaders set priorities and immediately reduce harm caused by the virus.

Adopted unanimously, our recommendations target law enforcement, courts, departments of corrections and community-based organizations — sectors that share the urgent imperative to reduce transmission risks while protecting public safety and constitutional rights.

Here’s a sampling of what we need to do now:

Protect everyone’s health by limiting in-person contact systemwide. The high risk of infection requires restricting interpersonal contact in police work, courts, custodial facilities, and probation and parole supervision.

That means safely thinning incarcerated populations through reduced admissions and accelerated releases, especially for medically compromised or elderly individuals who can be placed on house arrest or electronic monitoring. 

It also means limiting the use of bail for people awaiting trial to those who pose a significant danger to the community or a significant flight risk, and diverting those who commit minor violations away from jail. 

To reduce the spread of infection in our courts we should limit jury trials and reserve in-person proceedings for cases with a compelling need, including those certain to go to trial or involving defendants who are incarcerated.

Reduce the number of arrests

Absent a threat to public safety, law enforcement officers should issue warnings, summons or citations in lieu of arrest.

Sadly, a new report to the commission documented a spike in violent crime over the summer, with homicide rates increasing by 53 percent over the same period last year.

We know that targeted, evidence-based policing strategies, coupled with community efforts, can cut violent crime rates without relying solely on stops, searches and arrests.

Beating COVID-19 is critical for reducing violence as well, because many of the best strategies rely heavily on face-to-face engagement with high-risk individuals.

Require universal masking for all staff and impacted populations. Given the proven effectiveness of mask wearing, the heightened risks associated with criminal justice institutions and the critical need for such institutions to keep operating, masks should be mandatory indoors and in close-contact situations outdoors.

In too many instances in too many states that is not the norm. Authorities can make exceptions where necessary, but should aim for broad compliance.

Extensively and frequently test staff and justice-involved populations. Correctional and police agencies should adopt broad testing protocols, including rapid-result testing for officers. Incarcerated people should not be quarantined in conditions resembling solitary confinement or punitive segregation, and law enforcement officers should be provided alternative housing if isolation is required. 

Innovate using technology. Courts should use teleconferences, video hearings and other technology instead of in-person court proceedings, and create online tools to resolve traffic tickets, ordinance violations and minor criminal offenses.

While many jurisdictions have considerable budgetary constraints, officials should strive to deliver as many courthouse services as possible virtually, including the issuing of licenses and the collection of fines, and ensure technology is available in government buildings so that defendants, victims and witnesses can participate in proceedings.

Use phones for non-emergencies

Similarly, police should handle non-urgent calls over the telephone or through an online reporting system, and probation and parole officials should rely heavily on phone and video meetings to check in with people they supervise.

As we deliberated these and other recommendations, we were mindful of the justice system’s disparate impacts on people of color. A lack of data currently makes it impossible to deconstruct the demographic impact of COVID-19 on justice-involved individuals, but we must vigilantly monitor emerging evidence that some pandemic responses may be disproportionately affecting certain groups.

More broadly, we believe a crisis on the scale of COVID-19 demands that people and institutions adjust their behavior to new realities. This pandemic will shape the administration of justice  — and society — for generations, and we must draw on facts, evidence and our collective experience to recommit to a system better able to balance public health and public safety.

Lives depend on it.

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