Prosecuting During a Global Pandemic
From the outset of the COVID-19 pandemic, it was clear that the impact on people living and working in jails and prisons was potentially catastrophic. Advocates were sounding the alarm by early 2020 across the nation and locally in Tennessee. Five million people cycle through jails every year — where people live in close quarters and lack basic sanitary supplies — creating a petri dish for the transmission of COVID-19. Of course, jail and prison walls cannot contain the virus — which can just as easily leave those facilities and spread into surrounding communities and beyond.
Swift action from every criminal legal system stakeholder — from police and public defenders to judges and corrections officials — was and is necessary to prevent a health crisis behind bars. The person with the most power to increase or decrease incarceration rates, the prosecutor, also has a significant opportunity to protect people from unnecessary contact with the criminal legal system.
Once COVID-19 reached the United States, prosecutors should have swiftly used their immense discretion to reduce the number of people who were held pretrial or were sentenced to a confined facility, especially those most vulnerable. This includes dismissing low-level cases, recommending release without bail before trial, making full use of available diversion programs or alternatives that don’t involve confinement, offering non-confinement sentences in plea bargaining and sentencing recommendations, and supporting the release of particularly vulnerable people from jails and prisons.
Yet, despite early warnings, COVID-19 has raged throughout U.S. jails and prisons. Across the country, tens of thousands of people behind bars have tested positive for the virus, and hundreds have died — the result of sluggish and insufficient efforts from numerous criminal legal actors across the country.
In Tennessee, at least thirty jail facilities remained at or above 75 percent capacity by the end of April 2020, as COVID-19 infection rates continued to climb. Social distancing remains extremely difficult, if it is even feasible at all, in facilities this full. At least nine facilities were even more crowded, operating at or above 100 percent capacity by the end of April 2020 – meaning there were way more people incarcerated than there were beds available. And while the jail population across the state has decreased overall between February 2020 and July 2021, as of July 21, 2021, 28 jails are still operating at over 100% capacity. Unconscionably, three facilities are twice as full as they are constructed to be – the Loudon County Jail, operating at 201 percent capacity; the Monroe County Jail, operating at 204 percent capacity; and the Rhea County Jail, operating at 267 percent capacity.[i]
In May 2020, ACLU-TN and our partners went to court to protect individuals in the Shelby County Jail from widespread infection, serious injury and death from COVID-19. Among the horrid conditions inspectors found at the jail were a failure to test new arrestees, even those displaying COVID-19 symptoms; open airflow between areas of the facility where COVID-positive and quarantined people were detained and areas where others who had not been exposed to the virus were detained; a lack of fresh masks; staff wearing masks below their chins when speaking; and inadequate availability of cleaning supplies, hand sanitizer, and free soap.
As of August 24, 2021, 42 Tennesseans were suspected to have died from COVID-19 in TDOC facilities – the cause of death has been confirmed in 15 of these cases and is pending an official determination by a medical examiner in the rest.[ii]
As COVID-19 still remains a threat around the country, prosecutors remain best poised to coordinate with all system stakeholders to slow the spread inside jails and prisons. In order to do so effectively, they must reflect on the policies they have incorporated so far, analyze their results, and identify new ways they can better protect people in jails and prisons to ensure contact with the criminal legal system does not result in death.
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