1

Introduction

COVID-19 infection rates and the resultant morbidity and mortality of people who are incarcerated are disproportionately higher than those of the general population. According to the best available evidence, by August 2020 COVID-19 cumulative case rates among incarcerated people were nearly five times higher than the rates in the general population. In addition, the COVID-19–related death rate in the prison population was three times higher than in the U.S. population, adjusting for age and sex (Saloner et al., 2020). Overcrowding and the physical environment in many facilities, coupled with high levels of admissions and releases, make physical distancing and other prevention strategies difficult if not impossible to implement in correctional facilities. Moreover, the medical vulnerabilities of the incarcerated population create acute health risks in prisons and jails. Indeed, the conditions in correctional facilities have fueled epidemics of the past three decades (Beaudry et al., 2020; Hammett, Harmon, and Rhodes, 2002; Institute of Medicine, 2007; NRC, 1993, 2014) and now are posing a new public health threat during the COVID-19 pandemic.

Correctional facilities also are not as isolated as they may appear to be. What affects incarcerated people also affects correctional staff, the families of those incarcerated, and the local communities in which the facilities are located. Movement within jails and prisons; transitions among penal facilities, courts, and medical providers; and the daily staff inflow and outflow to and from local communities further challenge public health efforts to contain viral transmission and undertake public health efforts. Given racial and ethnic disparities in incarceration in the United States and their impacts

on the health of incarcerated individuals, their families, and communities¹ (NASEM, 2018, 2020b; NRC, 2014), prisons and jails may be contributing to higher prevalence of COVID-19 cases in predominantly Black and Hispanic communities relative to White communities (Gross et al., 2020; Webb Hooper, Nápoles, and Pérez-Stable, 2020).²

For months, federal, state, and local policy makers have faced the challenge of protecting people who work and live within the penal system and maintaining public health and safety. Correctional leaders have been responding to state and local directives, often with insufficient resources and guidance to fight the new pandemic. Furthermore, correctional health care systems have been historically administered outside of the mainstream public health infrastructure (Macmadu and Rich, 2015; NRC, 2014; Schwartz, 2008; Wachino, 2020). Unlike nursing homes, which were also a source of outbreaks, health care in prisons and jails is not overseen by an independent quality commission nor integrated with community health systems. As a result, correctional health services have often been left out of the epidemic preparedness planning undertaken at the local, state, and federal levels.³

There is no one solution to mitigating the spread of the novel coronavirus in correctional facilities and surrounding communities. Multiple steps, strategies, and reevaluations are required, especially in the context of evolving science and experience. Decarceration is one strategy, taken in parallel with other steps to create space and distancing and advance cleaning and health monitoring procedures within correctional facilities. During the pandemic, multiple decarceration efforts across jails, prisons, and detention centers have been undertaken, leading to an approximately 11 percent reduction in incarcerated populations. This report examines the strategy of decarceration—the challenges and opportunities of reducing the numbers of people in jails, prisons, and similar facilities—to mitigate COVID-19 transmission.

STUDY CHARGE AND SCOPE

In response to the need for advice on effectively decarcerating correctional systems, the Committee on Law and Justice of the National

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¹ We note that the rate of incarceration for Black women has declined since 2002 and is currently similar to that for White women (Myers, Sabol, and Xu, 2018). However, the rate of incarceration for Black men remains disproportionately high compared with White men.

² The limited data that are available also show health disparities during the COVID-19 pandemic among American Indian, Alaska Native, and Pacific Islander populations (Webb Hooper, Nápoles, and Pérez-Stable, 2020).

³ The National Commission on Correctional Health Care encourages correctional health providers to reach out to state and local health departments since they may not include correctional health in their planning or communications: see https://www.ncchc.org/COVID-Resources.

Academies of Sciences, Engineering, and Medicine, in collaboration with the National Academies’ Societal Experts Action Network, convened an expert ad hoc committee to examine evidence-based practices, equity issues, and the necessary community supports and services for decarceration and reentry.

The Committee on Best Practices for Implementing Decarceration as a Strategy to Mitigate the Spread of COVID-19 in Correctional Facilities was assembled to carry out this study and produce this consensus report on a rapid timeline to meet the pressing demand for guidance. The committee included experts in the areas of corrections, correctional health, economics, epidemiology, law, medicine, public health, public policy, and criminology and sociology. Arnold Ventures and the Robert Wood Johnson Foundation provided support for the study, and they asked the committee to examine best practices for implementing decarceration as a response to the pandemic and to take stock of the release mechanisms and the conditions (e.g., access to health care and adequate housing) that support successful reentry. See Box 1-1 for the committee’s formal statement of task.

In undertaking its charge, the committee interpreted “decarceration efforts” broadly to include efforts both to accelerate release from prisons and jails and to divert people from entering incarceration in the first place.⁴ It also viewed community supports as including resources and services for previously incarcerated individuals, their families, and their communities necessary to reduce risks of infection and promote well-being.

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⁴ See the Bureau of Justice Statistics for a flowchart of events in the criminal justice system at https://www.bjs.gov/content/largechart.cfm.

The committee recognized that decarceration is one of many strategies that will be used to protect people living and working in correctional facilities. Other measures include physical distancing, intensified cleaning, requirements for face coverings and personal protective equipment, single celling, cohorting,⁵ regular symptom screenings, contact tracing, and implementation of testing protocols among staff and incarcerated persons for SARS-CoV-2, the virus that causes COVID-19. Reducing the incarcerated population can facilitate these many strategies and the provision of medical care (Cloud et al., 2020). In addition, the positive effects of decarceration on reducing transmission of the virus may extend beyond correctional facilities, enhancing the safety not only of incarcerated people but also of correctional staff and others in the surrounding communities. Given our charge, the committee does not offer advice on the many measures employed for virus mitigation inside facilities, but we affirm their importance and view decarceration as an effort to support these other strategies (see Chapter 5).

This report focuses on prisons and jails in federal, state, and local jurisdictions, but the committee also examined data and literature on detention centers under the authority of U.S. Immigration and Customs Enforcement (ICE). As is the case in jails and prisons, ICE detention facilities have long been vulnerable to infectious disease outbreaks, even for diseases with effective prevention and management strategies (Erfani et al., 2020; Meyer et al., 2020).⁶ During the COVID-19 pandemic, ICE facilities are experiencing outbreaks similar to those in jails and prisons. While data are far from complete, more than 5,000 people tested positive for COVID-19 while in ICE custody from February to August 2020 (ICE, 2020).⁷ While correctional and immigration detention settings differ in many respects, they can share similar conditions—overcrowding, poor sanitary conditions, inadequate

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⁵ In guidance from the U.S. Centers for Disease Control and Prevention, “cohorting refers to the practice of isolating multiple individuals… or quarantining [them] together as a group” (CDC, 2020).

⁶ Several studies point to the transmission of diseases in ICE facilities. A survey of adults detained within a California ICE facility found that 12 percent were susceptible to varicella (chickenpox) during 2014 and 2015, a case rate six times higher than that in the comparable U.S. population of adults at the time (Varan et al., 2018). Similarly, between 2018 and 2019, there were nearly 900 confirmed and probable cases of mumps among adults in ICE detention facilities (Kuehn, 2019). A privately operated ICE facility in Arizona detected 32 cases of measles in 23 detained individuals and 9 staff in the course of a single month in 2016 (Venkat et al., 2019). A retrospective analysis of health reports for individuals detained in 2005 documented a culture-confirmed case rate of tuberculosis (TB) that was 2.5 times higher than that among foreign-born U.S. adults not detained (Schneider and Lobato, 2007). Another study of 327 individuals with confirmed pulmonary TB inside detention facilities found that nearly 80 percent were asymptomatic at the time of diagnosis (Boardman et al., 2020).

⁷ See ICE data reporting at https://www.ice.gov/coronavirus#main-content.

public health practices—that place both settings at increased risk of continuing to be hotspots for the COVID-19 pandemic. Because risks to public safety due to criminal behavior are low (NASEM, 2015), the federal government needs to also consider immediate strategies to mitigate the spread of COVID-19 in these centers, including decarceration.

The committee chose not to specifically examine juvenile detention centers, recognizing that the committee did not have strong expertise on the juvenile justice system, which operates very differently than adult corrections, and that the science on SARS-CoV-2 transmission among youth continues to be evolving rapidly. However, we acknowledge that many of the concerns expressed in this report about virus transmission in facilities where physical distancing, isolation, and quarantine are difficult and where people enter and exit regularly can apply to juvenile detention centers.⁸

WHAT IS DECARCERATION?

Decarceration is the process of reducing the number of people in correctional facilities by releasing those currently incarcerated and by diverting those who might otherwise be incarcerated. This process involves strategies for ending custodial sentences for those who are incarcerated as well as minimizing arrests, court appearances, and parole and probation revocations for those still in the community.⁹

Decarceration is not new. In many states, policy makers have tried to reduce prison and jail populations out of concern for the financial and social costs of incarceration, and the rate of incarceration in the United States started to decline in 2009 (NRC, 2014). Although there is consistent evidence that imprisonment has some crime-reducing effect (NRC, 2014, see Chapter 5), a number of states have been able to reduce their prison populations without increasing serious crime (e.g., Bird, Goss, and Nguyen, 2019).

Other epidemics (Beaudry et al., 2020) and early experiences with the COVID-19 pandemic have shown the importance of depopulating congregate living and working areas, particularly high-risk settings like correctional facilities. Since many of the jails, prisons, and detention centers in the United States are overcrowded (Carson, 2020), and physical conditions of incarceration can spread infection, decarceration can protect

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⁸ On September 30, 2020, the Sentencing Project reported COVID-19 infections among more than 1,800 incarcerated youth and more than 2,500 staff working in facilities in the juvenile justice system: see https://www.sentencingproject.org/publications/youth-justice-under-thecoronavirus-linking-public-health-protections-with-the-movement-for-youth-decarceration.

⁹ In March 2020, for example, the United Nations High Commissioner for Human Rights urged governments to address the needs of those confined and working in place of detention, encouraging them to act quickly to reduce the numbers of people detained: see https://news.un.org/en/story/2020/03/1060252.

medically vulnerable incarcerated people and staff and “flatten the curve” of virus transmission both within correctional facilities and in the broader community.

Indeed, efforts to decarcerate are already under way across a number of jurisdictions during the pandemic. Prisons and jails experienced declines in total population (approximately 11 percent of the incarcerated population) in the first half of 2020 (Franco-Paredes et al., 2020; Jail Data Initiative, 2020). These efforts have included releasing individuals who are close to their release date or considered low risks to public safety. Other strategies include changes to custodial sentencing decisions and intake processes. Some localities have reduced jail admissions by opting for citations instead of arrest or by vacating warrants for unpaid court fines.¹⁰

As detailed in Chapter 3, these reductions appear to be mainly the result of declines in arrests, jail bookings, and prison admissions related to lockdowns and the closure of state and local courts. The releases among sentenced jail and prison populations that have occurred have, for the most part, occurred on a case-by-case basis and have been procedurally slow and not well suited to crisis situations.

The various stakeholders—governors, legislators, criminal justice and public health officials, community leaders, and health system and housing and safety net organizations—will have to coordinate their efforts as they consider policy options to safely reduce incarceration, including community supervision, sentencing, and sanctions; jail and prison release mechanisms; reentry strategies; and community reintegration. Coordination is necessary because the challenge of decarceration is not confined to penal facilities. Rather, it also encompasses the provision of health care, housing, and financial supports to the formerly incarcerated and the families who support them, and developing policies and institutional structures that keep communities safe and healthy during the pandemic.

MAGNIFIED INEQUITY IN THE COVID-19 PANDEMIC

The committee recognizes that several previous reports of the National Academies (Institute of Medicine and National Research Council, 2013; NASEM, 2018, 2020b; NRC, 2013, 2014) have documented and reflected on health and racial/ethnic disparities related to the criminal justice system. The Growth of Incarceration in the United States: Exploring Causes and Consequences (NRC, 2014, pp. 2, 5) explains the following:

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¹⁰ See more information and discussion on the efforts—both in and out of courts and corrections—to decrease jail and prison populations in Chapter 3 of this report as well as through the UCLA Law Covid-19 Behind Bars Data Project available at https://law.ucla.edu/academics/centers/criminal-justice-program/ucla-covid-19-behind-bars-data-project.

Those who are incarcerated in U.S. prisons come largely from the most disadvantaged segments of the population. They comprise mainly minority men under age 40, poorly educated, and often carrying additional deficits of drug and alcohol addiction, mental and physical illness, and a lack of work preparation or experience. Their criminal responsibility is real, but it is embedded in a context of social and economic disadvantage… Racial disparities in incarceration have tended to differentiate the life chances and civic participation of blacks, in particular, from those of most other Americans… Incarceration is associated with overlapping afflictions of substance use, mental illness, and [higher] risk for infectious diseases (HIV, viral hepatitis, sexually transmitted diseases, and others) [than the general population]. This situation creates an enormous challenge for the provision of health care for [incarcerated persons], although it also provides opportunities for screening, diagnosis, treatment, and linkage to treatment after release.

The COVID-19 pandemic has in general exposed and exacerbated long-standing health inequities in the United States (NASEM, 2017) that have resulted in socioeconomically disadvantaged people and people of color—notably Black and Hispanic populations—facing disproportionate risks of infection, severe morbidity, and death (Gross et al., 2020).

These groups are at increased risk of infection since they are disproportionately represented in high-risk settings (e.g., front-line work, prisons and jails, homeless shelters, overcrowded housing) (Rogers et al., 2020). This risk of infection is coupled with increased risk of complications once infected due to a higher prevalence of underlying health conditions—conditions that are often undertreated because of structural disadvantages (e.g., limited access to health care), as well as discrimination within health systems (Darity, 2003; NASEM, 2017, 2020a; NRC, 2014). Beyond these health issues, the economic crisis brought on by the pandemic also disproportionately impacts communities considered to be more racially and ethnically diverse than predominantly White communities (Adhikari et al., 2020; Cowger et al., 2020).¹¹

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¹¹ These health disparities are exacerbated by corresponding racial, ethnic, and economic disparities in rates of incarceration, with a variety of broader effects (NRC, 2014). Having a prison record is associated with an elevated risk of negative health outcomes across the life course (Esposito et al., 2017; Massoglia, 2008; Schnittkner and John, 2007). Sixty-three percent of Black Americans and 45 percent of Americans overall have had an immediate family member incarcerated (Enns et al., 2019). Families of incarcerated people also tend to suffer negative physical and mental health outcomes as a result of their loved one’s incarceration (Davis and Shlafer, 2017; Dube, Anda, and Felitti, 2001; Gaston, 2016; Heard-Garris et al., 2018; Lee, Fang, and Luo, 2013; Roettger and Boardman, 2012; Swisher and Roettger, 2012; White, Cordie-Garcia, and Fuller-Thompson, 2016; Wildeman, Schnittkner, and Turney, 2012). Incarceration not only affects the health of incarcerated populations but also contributes to the breakdown of educational opportunities, family structures, economic mobility, housing options, and neighborhood cohesion, especially in low-income communities of color (NRC, 2014). In this sense, incarceration is part of a community ecology that shapes more proximate social determinates of health (Cloud, Parsons, and Delany-Brumsey, 2014; NASEM, 2018).

Decarceration is a strategy for reducing viral transmission in correctional settings, but it needs to be executed with an eye toward reducing these existing inequalities and in ways that do not increase risks to the health and well-being of already vulnerable families and communities. Health equity will therefore be an important goal in decarceration efforts. In this report, health equity encompasses the fair opportunity for all members of the population to be as healthy as possible. According to framing by the Robert Wood Johnson Foundation, such opportunity “…requires removing obstacles to health such as poverty, discrimination, and their consequences, including powerlessness and lack of access to good jobs with fair pay, quality education and housing, safe environments, and health care” (Braveman et al., 2017, p. 2).

APPROACH TO THIS STUDY

During the course of this study, the committee met virtually five times over a 5-week period. In addition to deliberating on the available scientific literature and evolving information related to correctional settings and the COVID-19 pandemic, the committee heard a presentation from the sponsor and received a commissioned paper from the COVID Prison Project, documenting COVID-19–related data in correctional facilities.¹² Two conference calls were also held to hear from both correctional officials and groups representing currently and formerly incarcerated persons to learn about their concerns, challenges, and perspectives on the pandemic and mitigation strategies in place. To supplement its own expertise, the committee also drew on the presentations and discussions in two public webinars hosted by the National Academies’ Societal Experts Action Network (see Chapter 5):

• The first webinar, “Preventing the Spread of COVID-19 in Correctional Facilities,” held August 20, 2020, examined emerging practices for preventing new cases in jails and prisons. Highlighted strategies included wastewater surveillance, testing and contract tracing in correctional facilities, best practices for decarceration, and preparations for vaccine distribution. Speakers were Annette Chambers-Smith, Ohio Department of Corrections; Sara Smith Kariko, Washington State Department of Corrections; Lisa Puglisi, Yale School of Medicine; and Homer Venters, former chief medical officer of the New York City Correctional Health Services.
• The second webinar, “Health Care and Health Care Financing for COVID-19 in Correctional Facilities,” held August 26, 2020, examined how correctional facilities are managing health care during

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¹² See https://covidprisonproject.com.

• COVID-19 and strategies for financing COVID-19–related health care. Topics discussed included sick call and long-term care for COVID-19 patients; protection of medically vulnerable people in correctional facilities, including medical isolation; and opportunities for expansion of Medicaid coverage for correctional populations. Speakers included Jennifer Clarke, Rhode Island Department of Corrections; Vikki Wachino, Community Oriented Correctional Health Services; Brie Williams, University of California, San Francisco; and Tyler Winkelman, Hennepin County and University of Minnesota.

In preparing this report, the committee drew on its own expertise—years of studying and working with the criminal justice system and correctional health care—and studied a burgeoning research literature on the pandemic and incarceration, and it also examined newly collected data on the COVID-19 pandemic in correctional settings and on decarceration efforts. Given the timeline for producing this report, however, an exhaustive review of all available guidance documents for jails, prisons, and other detention facilities was not feasible. The committee is aware that numerous resources, including those from the U.S. Centers for Disease Control and Prevention, the World Health Organization, the Council on Criminal Justice, and a number of state departments of corrections, offer guidance and recommendations for correctional facilities. Where appropriate, this report looks at how guidance from these other documents fits with the committee’s conclusions and recommendations.

REPORT PURPOSE AND AUDIENCES

This report is intended primarily to provide guidance to policy makers, correctional officials, correctional and community health providers, and public health officials at the federal, state, and local levels. It should also be useful to others who offer input and advice to these decision makers and to researchers continuing to study correctional settings and the effects of the COVID-19 pandemic. The committee recognizes that readers will be concerned with weighing issues of health risks and equity alongside priorities for rehabilitation, reentry, and public safety. Public safety and public health, however, depend closely on each other and any strategy that works at the intersection of these domains should aim to strengthen both.

As the COVID-19 crisis escalated in prisons and jails around the country in March and April of 2020, criminal justice policy makers and public health officials often worked quickly and vigorously with few resources or guidance. Acknowledging these efforts and drawing on the lessons of this

experience, the committee offers this report to help decision makers further reduce jail and prison populations during the current outbreak.

ORGANIZATION OF THE REPORT

Following this introduction, Chapter 2 provides context on the criminal justice system, specifically how five factors augment the transmission of COVID-19: (1) correctional population turnover; (2) overcrowding in old, poorly ventilated facilities; (3) admission to and release from low-income and predominantly Black and Hispanic neighborhoods; (4) chronic health conditions that increase risk for COVID-19 morbidity; and (5) the state of correctional health care, which is siloed from the public health infrastructure. The chapter describes the pandemic in correctional systems and what is known about its impact on incarcerated people, staff, and surrounding communities and illustrates how decarceration may facilitate decreasing infection within correctional systems and surrounding communities.

Chapter 3 expands on decarceration as a way to mitigate viral transmission and COVID-19 complications. It examines multiple ways to approach decarceration, outlines important considerations, identifies best practices, and provides new data on current decarceration efforts in prisons and jails.

Chapter 4 focuses on reentry and the community supports in such areas as health care and housing that need to be in place to complement decarceration.

Chapter 5 provides background on a number of strategies undertaken or considered to reduce the spread of the virus in correctional settings and offers concrete recommendations for supporting decarceration strategies.

Finally, Appendix A provides a detailed discussion of research on recidivism, and Appendix B provides biographical sketches of committee members and study staff.