A little more than two years into the COVID-19 pandemic, a picture is emerging as to the effect the pandemic has had on the nation’s prison and jail systems.
The United States incarcerates more people than any other country in the world. This nation has effectively turned the judicial process of punishing criminal wrongdoers into what has become known as the “prison industrial complex.” The U.S. Justice Department has estimated at least 5,000 federal crimes in statute and 300,000 regulations with criminal penalties. It is estimated that the number of crimes has doubled over the last three decades.
A December 9, 2019, opinion piece in The Hill lamented the adverse impact of this nation having too many crimes:
“Having so many criminal statutes is a problem as it makes it possible for prosecutors, rather than judges and juries, to decide how undesirable conduct is punished. At times, it allows them to decide to imprison people who deserve a fine or just social opprobrium. With so many different laws on the books, clever and determined prosecutors can threaten decades in prison for acts that may amount to simple bad judgment. This makes it easier for them to coerce plea bargains, raises the stakes of a day in court and, by allowing different punishments for the very same underlying acts, undermines respect for the law itself. This is the opposite of the system of limited and clear laws that the framers of the Constitution had intended.”
Overcriminalization and unforgiving, harsh punishments are the foundation of the prison industrial complex.
According to the Prison Policy Initiative, it now requires 1,566 state prisons, 102 federal prisons, 2,850 jails, 1,510 juvenile correctional facilities, 186 immigrant detention facilities, and 82 native territory jails—not to mention civil commitment facilities, military prisons, state psychiatric hospitals, and U.S. territories prisons—to accommodate those charged and those found guilty of violating crimes in statute.
Everything was working smoothly in the prison industrial complex—the revolving doors opening for those entering for the third time and closing behind those leaving for the second was constantly turning—until the COVID pandemic struck in 2020. According to the Equal Justice Initiative, prisons immediately became “super spreaders” of the virus, killing more than 3,000 inmates and prison staff and infecting more than 161,000 by the end of 2021. While the pandemic did not shut down the criminal justice system that fuels the prison industrial complex, it did slow it measurably.
In a March 14, 2022 report, The Prison Policy Initiative laid out the changes the pandemic has had on prison incarceration:
- 24% fewer arrests in 2020 compared to 2019, mainly due to changes in everyday behaviors under widespread “stay at home orders,” as well as short-term guidance issued by some police departments to limit unnecessary contact and jail bookings;
- 21% fewer criminal cases were filed in state courts in 2020 compared to 2019 — the result of fewer arrests and changes in some prosecutorial practices;
- 36% fewer criminal cases resolved in state courts from 2019 to 2020, attributable to court closures, operational changes, and delays in case processing;
- A 17 percentage point net drop in criminal case clearance rates in state courts, indicating a growing backlog of pending cases;
- 40% fewer admissions to state and federal prisons in 2020 compared to 2019, largely the result of court slowdowns but also partly due to the refusal of some prisons to accept transfers from local jails to prevent the spread of the virus.
The Vera Institute also reported in February 2020 that the mass incarceration in U.S. correctional facilities declined 1.1 percent during the first two years of the pandemic. While inmate numbers in all state and federal penal facilities fell in 2020, there was an uptick in incarceration in 2021 in 19 states and the federal system.
Vera listed Texas as the state with the most incarcerated people—more than 133,000, just behind the Federal Bureau of Prisons’ 157,424 people incarcerated. Texas Gov. Greg Abbott utilized his executive authority to restrict the kinds of inmates who could be released from prison because of the pandemic.
Data from Spectrum News shows that as of November 5, 2021, more than 200 inmates in Texas prisons had died from COVID, more than in any other state. And the Pew Research Center reported in October 2021 that some states, including Texas, are cloaking their COVID data to conceal the number of people who have died. That would certainly be typical of everything else about the Greg Abbott administration.
Unfortunately, the pandemic/prison data shows that as a whole, the United States will continue its mass incarceration policies necessary to sustain the $200 billion prison industrial complex. New prisons are being funded and built, and new prisoners are being created to put in them.