The Issue:

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COVID-19 has transformed life in the US and around the globe. This includes American policing and other elements of the criminal legal system. As calls mount for rapidly depopulating prisons, jails, and other detention settings as part of the pandemic response, frontline personnel in a growing number of jurisdictions are being instructed to limit arrests and other encounters with the public. Advocates had long urged shrinking the footprint of the policing and criminal legal system based on civil rights, racial justice, fiscal stewardship, and other considerations. Beyond a few notable exceptions, calls for reform had failed to gain real traction. In the age of COVID-19, however, public health and occupational safety concerns are rearranging this landscape.

Reorientation of carceral systems towards public health is far from guaranteed. In many jurisdictions, both policies and practices of the criminal legal system are exhibiting a stubborn resistance to change. At a time when there is an urgent imperative to rapidly remove individuals who have been arrested and sentenced to prevent disease transmission, most key decision-makers have continued to oppose these efforts. Rather than practicing “shelter in place” and social distancing policies they are preaching, police departments in many jurisdictions have continued to cling to enforcement of minor offenses. Community supervision systems are largely maintaining onerous and counterproductive requirements, such as frequent observed urinalysis. These failures to adapt to a new reality are impeding pandemic response, while putting frontline staff at risk of infection.

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In addition, COVID-19—just like the overdose crisis and other public health challenges—sets the stage for the criminal legal system net-widening, rather than shrinking. It is no accident that the legal term for public health authority is “police power:” public health measures often take authoritarian, carceral, and disciplinary forms. Shelter-in-place ordinances, business closures, curfews, and other measures to facilitate social distancing carry criminal penalties of months or years of incarceration. Police officers are enforcing orders to “flatten the curve” with increasing intensity, adding the risk of COVID-19 infection to the existing set of negative health sequelae of law enforcement encounters. 

Invariably, these enforcement actions target the most visible and vulnerable members of the public, including racial and ethnic minorities, the unhoused, and economically marginalized people. Prosecutors are also criminalizing the spread of COVID-19 and seeking unprecedented powers to detain individuals for unlimited periods of time.

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It is imperative to ensure that US policing and other elements of the criminal legal system
effectively respond to COVID-19. At the same time, we must challenge mounting carceral
responses to this crisis. Ultimately, our North Star should be to use the clarity afforded by
COVID-19 to facilitate positive system adjustments, encourage their sustainability, and to
reimagine our criminal legal approaches through a public health lens.