It is rapidly becoming clear that COVID-19 is having a profound effect on the criminal justice system. The system has had to act fast to balance public safety and the administration of justice with prevention of the spread of infection among criminal justice stakeholders and the public. Most jurisdictions have “stay-in-place” and social distancing directives in place. That’s hard for agents of the criminal justice system, and justice-involved individuals. Overcrowded jails and prisons make social distancing difficult. Police encounters, court appearances, and probation and parole visits all usually require in-person, face-to-face contact.
The justice system has had to identify ways to limit exposure by changing job functions. Tactics include:
- Handling non-emergency calls for service over the phone.
- Conducting virtual arraignment hearings.
- Reducing in-person contacts between probation officers and people on community supervision or conducting those contacts virtually.
One key to enforce social distancing is to figure out how to reduce the number of people in confinement without risking public safety. As reflected in the graphic at the bottom of this blog, that can mean:
- Reducing the number of low-level offenders arrested.
- Reducing the number defendants in pre-trial detention.
- Releasing individuals charged with low-level offenses from jails and prisons before their release date.
- Increasing the number of people sentenced to probation instead of detention.
Guidance to criminal justice professionals is rolling out slowly, but we are in unprecedented times, and agencies are needing to adjust rapidly and continually based on changing local scenarios, resources, and capabilities – regardless of guidelines. However, examples do exist within the country for how communities have responded in times of crisis (for example, in New Orleans after Hurricane Katrina) and lessons learned from those experiences could be considered when determining actions to take.
Many of the changes that COVID-19 prompted, scaled, or accelerated might be good ideas in the absence of a pandemic. It will be important to monitor and evaluate their effectiveness. Doing so in the midst or immediate aftermath of a pandemic, however, can introduce some biases because of the abnormal environment. For example, we are already seeing shifting patterns of criminal activity and arrests. Enforcement of community supervision technical violations has been relaxed to reduce the number of people cycling in and out of correctional facilities. A recession and a lack of jobs will likely exacerbate the challenges to becoming or remaining fully engaged citizens that vulnerable and justice-involved populations already faced.
The potential pandemic anomalies mean that evaluations should include data that pre-date COVID-19. Policymakers and agents across the justice system will be grappling with important pandemic-inspired questions for some time to come: If individuals released to the community show up for court, did they ever need to be held pretrial? If convicted offenders released on community supervision instead of being confined don’t become recidivists, should they have been considered for confinement in the first place? If low-level or elderly offenders released early don’t become recidivists, did their sentences need to be so long in the first place? In the end, the question is this: Will this forced social experiment provide the evidence criminal justice reformers need to promote and adopt a broad array of welcome changes, or will it have the opposite effect, providing critics with material that counters reform arguments?