Justice

Mass Incarceration: As Rational As A 5-MPH Speed Limit

The COVID-19 threat to the prison population calls for dispassionate analysis.

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COVID-19 is slicing through our densely populated prisons and jails, where people are unable to practice social distancing or good hygiene. In Ohio, for example, five percent of the state’s prison population has tested positive, including more than 1,800 people at one facility. As the infection rate and death toll rise, pressure is building on governors, sheriffs, and other elected officials to thin the incarcerated population by releasing sick and elderly prisoners who are most at-risk from the disease, as well as people who have been arrested for lower-level offenses.

Sadly, most elected leaders are resisting this pressure, and it’s clear the reason for their hesitancy is fear. They worry that someone released will commit another crime. Actually, it’s more accurate to say that they worry someone released will commit another crime and they, the elected leaders, will get blamed for it. We already have seen everyone’s nightmare play out. Last week, a man arrested for drug possession and held on a $2,500 bond was released on his own recognizance in order to combat the spread of COVID-19 in a county jail. The next day, the man allegedly murdered someone.

The fact that a tough-on-crime Florida sheriff permitted the release or that the man could have easily found the $250 required to post bond and secure his own release did nothing to quell the howls from the usual corners. This individual tragedy would be used to make a broader argument. No one should be released, we are told, lest anyone commit another crime. Or,
as Baltimore’s police commissioner said recently, “One murder is one too many. Zero murders should always be the goal.”

That sounds good. After all, who is willing to risk the deaths of innocent people?

It turns out we all are.

Everyone supports policies that result in the deaths of hundreds of thousands of Americans every year. Roughly 40,000 people die every year in traffic accidents. Thousands of others are permanently injured. We could almost certainly eliminate at least 90 percent of traffic-related deaths if we reduced the speed limit to 5 miles per hour and banned left turns. Think about it: We could save 36,000 innocent lives every year if we all were willing to add some time to our daily commute. But are we?

The list of activities that result in unnecessary deaths is long. Air pollution cuts short the lives of 90,000 to 360,000 people every year in the United States. Pools, trampolines, and motorcycles kill and maim thousands more. Sugary drinks are associated with a higher risk of early death. Alcohol’s death toll is higher than deaths due to guns, cars, drug overdoses, or HIV/AIDS ever have been in a single year.

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There are policies that could reduce every one of these death totals dramatically, but we recognize that the cost would be too high, so we tolerate them. We don’t do it out of callousness or mean-spiritedness. We all just accept that life comes with risks and rewards, costs and benefits, and we must weigh these things when making policy. We are not indifferent to loss, but we recognize that we cannot eradicate risk.

Except, it seems, when it comes to justice policy.

The idea that we can prevent all crime is no more reasonable than the idea that we can eliminate all traffic accidents and alcohol-related deaths. But in an effort to pretend they can achieve the unachievable, leaders from both political parties have pursued extreme sentencing policies — mandatory minimums, “Three Strikes” laws, etc. — that are the cost-benefit equivalent of a five-mile-per-hour speed limit, or the prohibition of alcohol.

The result? The United States now has the world’s largest prison population. Like a 5-mph speed limit, our radical experiment in mass incarceration comes with significant costs. Lengthy incarceration breaks up families, ends relationships, and is correlated with poorer health outcomes and earlier death. But the costs aren’t limited to the incarcerated or their innocent families. Politicians’ irrational approach to crime ironically leaves the public less safe, as resources that could be invested in successful crime prevention efforts are instead wasted on unnecessary incarceration.

The same goes for releases from jails and prisons in the wake of COVID-19. The fear that anyone released might commit another crime has led some politicians to oppose all such releases. But, again, this approach could leave the public less safe. After all, refusing to release low-risk people leaves them in prison, where they are at relatively higher risk of sickness from the coronavirus. Treating them adds to the burden of an already overtaxed health care system; a ventilator being used by a would-be releasee left in prison is a ventilator unavailable for your grandmother. As a result, it’s possible that failing to release relatively low-risk people from prisons and jails threatens more lives than it will save.

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It’s time to grow up. We need to recognize that no public policy is perfect. Every proposed solution comes with costs and benefits, and tradeoffs are unavoidable. Justice policy is no different. Thinking clearly about crime and punishment does not require indifference to the suffering of victims of crime; their experience is an important part of the relevant balance. The best way to approach these issues with the same dispassionate analysis we use in every other area of life that involves risk.

Our leaders should not be paralyzed by fear, especially now. As the death toll in prisons and jails rises from the spread of COVID-19, their intolerance of any risk is going to cost many more lives than it will save.

Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.

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