COVID-19 infection rates in correctional facilities and the resulting morbidity and mortality are disproportionately higher than the general population. By August 2020, COVID-19 cumulative case rates among incarcerated people were nearly five times higher than in the general population and the rates among correctional staff were three times higher. 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. Because of the large racial and ethnic disparity in incarceration, the penal system has likely contributed to inequality in infections. And because correctional facilities are not isolated settings—incarcerated individuals move between facility and community and staff return home at night—the outbreaks in correctional facilities are associated with community infection rates.
In this context, Arnold Ventures and the Robert Wood Johnson Foundation asked the National Academies of Sciences, Engineering, and Medicine to form an ad hoc committee to offer guidance on efforts to decarcerate, or reduce the incarcerated population, as a response to the COVID-19 pandemic. The committee—comprising experts in corrections, correctional health, economics, epidemiology, law, medicine, public health, public policy, and criminology and sociology—examined best practices for implementing decarceration and the conditions that support safe and successful reentry of those decarcerated.
1 This summary does not include references. Citations to support the text and conclusions herein are provided in the body of the report.
COVID-19 AND CORRECTIONAL FACILITIES
The conditions and characteristics of correctional facilities—overcrowded with rapid population turnover, often in old and poorly ventilated structures, a spatially concentrated pattern of releases and admissions in low-income communities of color, and a health care system that is siloed from community public health—accelerates transmission of the novel coronavirus (SARS-CoV-2) responsible for COVID-19. Such conditions increase the risk of contact with the virus for incarcerated people, correctional staff, and their families and others in their communities. Relative to the general public, moreover, incarcerated individuals have a higher prevalence of chronic health conditions, such as asthma, hypertension, and cardiovascular disease, making them susceptible to complications if they become infected. Indeed, according to data available for this report, cumulative COVID-19 case rates among incarcerated people and correctional staff have grown steadily higher than case rates in the general population since March 2020.
A growing body of research on the transmission of the novel coronavirus and epidemiological models of the spread of infectious diseases help explain why prisons and jails have become hotspots for COVID-19; the research also points to strategies for mitigating the spread of the disease. Decarceration from correctional facilities is one such strategy. By creating smaller populations within correctional institutions, other mitigation strategies are easier to implement. Physical distancing, diagnostic testing, and the ability to quarantine and medically isolate the incarcerated population that remains are all assisted by low prison and jail populations and slack capacity. To achieve population reduction, the committee viewed decarceration as consisting of both diversion from incarceration prior to admission and reduction of the incarcerated population through accelerated release from jails, prisons, and detention centers.
From its review of the evidence, the committee concluded that decarceration is an appropriate and necessary mitigation strategy to include in the COVID-19 response in correctional facilities and would reduce risks of exposure to and transmission of the disease within correctional facilities, thus improving the safety of incarcerated and detained people and correctional staff.
CONSIDERATIONS FOR DECARCERATION AND REENTRY
The current public health emergency necessitates a broad conception of public safety that includes the threats to life and health posed by the virus. In its study, the committee considered both public safety and public health. It reviewed large bodies of research on recidivism and the inca-
pacitation effects of incarceration on crime, and it examined correctional health, reentry supports, and the health effects of incarceration on individuals and their families and communities. The committee also considered how decarceration might affect racial equity given disproportionate rates of incarceration and consequences in Black, Hispanic, and Native American communities.
Research on recidivism suggests that correctional authorities could decarcerate in a manner that would pose relatively little risk to public safety. Research on reentry and health care for justice-involved people finds that access to community health care and housing support are important complements to decarceration, helping to promote public health and safety. In light of racial and ethnic disparities in COVID-19 infection rates as well as socioeconomic vulnerabilities emerging as the pandemic evolves, any efforts to decarcerate will need to consider not only those individuals released from correctional facilities but also the families and home communities to which they return. Appropriate planning for reentry and the provision of supports, especially during the first few weeks following release, can help mitigate public health and public safety risks and also the racial inequities that exist and are widening.
Some jurisdictions have taken steps to decarcerate their prisons and jails since the onset of the pandemic. But the reductions in incarceration that have occurred appear to have resulted mainly from declines in arrests, jail bookings, and prison admissions because of temporary closures of state and local courts rather than proactive efforts to decarcerate prisons and jails. Despite the desirability of decarceration from the perspective of public health and its feasibility from the viewpoint of public safety, the committee found that there is too little scope in current law for accelerating releases for public health reasons. Indeed, medical or health criteria for release, even in pandemic emergencies, are largely nonexistent at the state level and highly circumscribed in the federal system.
GUIDANCE FOR DEPOPULATING CORRECTIONAL FACILITIES
In formulating its recommendations for taking action on these issues, the committee recognized that decarceration is a process, not a one-time action. Successful decarceration will depend on existing partnerships and new collaborations. And it will require a range of decisions, actions, and programs, not just from the criminal justice system but also in domains of social policy including health care, housing, and income support. Decarceration efforts will vary by state and jurisdiction, reflecting the state of viral transmission within a correctional facility and the surrounding community and the complement of housing, health care, income supports necessary and available at the time.
The committee recognizes that some actions will be immediately feasible, while others will take longer to implement. Because the duration of the current crisis is unpredictable, the recommendations offered herein address both immediate demands for preventing and controlling COVID-19 transmission in correctional facilities and steps that can be taken to foster preparedness for the next outbreak, pandemic, or public health emergency.
Guiding Principles for Decarceration
Informed by research and epidemiological data, the committee outlined the following principles to be considered in developing strategies for depopulating correctional facilities:
- Maximization of net benefits,
- Equal regard and fairness with view to mitigation of health and racial inequities, and
- Transparency to support evidence-based decision making.
Together, the principles encourage decision makers releasing incarcerated individuals to do so through a lens of racial equity, meaning that all people have the opportunity to be released safely back to their families and communities.
Diversion: Immediate Actions
The committee’s review of the evidence revealed the fundamental importance of reducing prison and jail populations as a public health strategy that will ultimately enhance community safety. Accordingly, the committee outlines steps for decarcerating through diversion. During public health crises, there are few compelling public safety reasons to hold many people in custody. While there may often be risks of criminal behavior in the future, evidence suggests those risks are relatively low for many individuals, especially in pretrial detention.
Recommendation 1: Federal, state, and local officials should exercise their discretion across a variety of domains to divert individuals from incarceration, including
- law enforcement’s issuance of citations in lieu of making arrests;
- judges’ and prosecutors’ adherence to a strong presumption against pretrial detention, and release on own recognizance as a default option, to be overridden only when strong evidence indicates that release would be at odds with public safety or court appearance;
- legislatures’, prosecutors’, and courts’ elimination of the use of incarceration for failure to pay fines and fees and prioritization of noncustodial penalties for misdemeanors, probation and parole violations, and other nonserious conduct to the extent possible; and
- local officials’ elimination or significant reduction in the use of bail.
Release: Immediate and Medium-Term Actions
While efforts to divert individuals from incarceration will stem the flow of people into jails and, ultimately, prisons, for individuals already incarcerated, additional mechanisms will be needed to reduce health risks. The committee acknowledges that release efforts often require greater political will and more time to implement than diversion efforts. However, consideration of health equity prompts a deeper look at these incarcerated individuals, especially those in prisons who tend to be at greater risk for COVID-19 due to their age, the presence of chronic health conditions, and the length of potential exposure given their typically longer sentences.
The necessary extent of depopulation will vary by facility. The need for and timing of various decarceration strategies will require consideration of factors such as overcrowding, the physical design and conditions of facilities, population turnover, health care capacity, and case positivity rates (or reproduction ratio) among the incarcerated population and surrounding community. A number of officials have authority to impact release efforts throughout correctional systems at the federal, state, and local levels.
Recommendation 2: Correctional officials in conjunction with public health authorities should take steps to assess the optimal population level of their facilities to adhere to public health guidelines during the pandemic, considering factors such as overcrowding, the physical design and conditions of their facilities, population turnover, health care capacity, and the health of the incarcerated population.
Recommendation 3: To the extent that the current population level in a facility is higher than the optimal population level for adhering to public health guidelines, correctional officials should identify candidates for release from prison and jail in a fair and equitable manner and engage other officials outside the correctional system as necessary to expedite decarceration to the optimal level. Individuals assessed as medically vulnerable, nearing sentence completion, or of low risk to commit serious crime are likely to be suitable candidates for release during a public health crisis.
Recommendation 4: Given the extreme medical vulnerability of some incarcerated people to COVID-19, federal and state policy makers should revise compassionate release policies to account for petitioners’ medical condition, age, functional or cognitive impairment, or family circumstances. Because of the severity of the health risks, such applications should be reviewable by the courts or some other decision maker external to the standard parole process and should allow scope for representation by counsel in the process on behalf of petitioners.
Reentry: Immediate and Medium-Term Actions
Research indicates that when a person leaves a correctional facility, the most urgent needs for material well-being are housing, health care, and income support. The committee therefore recognizes that these are important complements to any efforts to decarcerate and recommends that correctional officials, in collaboration with public officials and community-based programs, develop individualized reentry plans incorporating a bundle of services that encompass housing, health care, and income supports. The development of these plans should include efforts to identify systemic barriers to accessing public benefits and maintaining continuity of benefits and to support enrollment in benefits for individuals returning from incarceration across each of these domains. Public officials should also employ measures to avoid creating additional COVID-19–related health risks to the families and communities to which incarcerated individuals are returning, including offering testing prior to release, a place to quarantine in the community, and examination of parole and probation policies and procedures.
Recommendation 5: When releasing individuals from prisons and jails, correctional officials, in collaboration with other public officials and community-based programs, should develop individualized reentry plans incorporating a bundle of services encompassing health care, housing, and income supports to address individual and family needs as an important complement to decarceration efforts. Incarcerated individuals should be eligible and approved for such services at least 30 days prior to release when possible.
- Federal, state, and local authorities should identify resources for providing housing as required by incarcerated individuals for safe discharge including space for quarantining in the community. Local housing authorities should limit restrictions on housing eligibility based on criminal history to those required by the U.S. Department of Housing and Urban Development and limit restrictions on tenants adding returning household members. Federal, state, and local authorities should explore
- opportunities to offer financial support to families that provide housing to incarcerated individuals upon release. Correctional officials should take steps to facilitate enrollment in appropriate housing programs and services prior to release where necessary, and a lack of housing in the community should not be grounds for continuing incarceration.
- State and local officials should identify barriers to access public benefits for individuals returning from incarceration; work to maintain continuity of benefits; and support enrollment in benefits for income and basic needs, including access to the Supplemental Nutrition Assistance Program, Medicaid, Medicare, and Supplemental Security Income.
- Community health systems should facilitate health care access for people just released from correctional systems by removing requirements for government identification at the first visit, prioritizing the urgency of in-person first appointments immediately prior to release, and easing restrictions on video visits to improve engagement in primary care, substance use, and mental health treatment. The federal government, through the Centers for Medicare & Medicaid Services, Substance Abuse and Mental Health Services Administration, and the U.S. Drug Enforcement Administration, should extend and expand upon guidance that has permitted flexibility in the use of telemedicine for primary care and substance use treatment.
Recommendation 6: Correctional officials in coordination with local public health authorities should implement measures to avoid creating additional COVID-19–related health risks for families and communities. These measures should include providing COVID-19 testing prior to release and facilitating quarantining as necessary. When newly released individuals lack a place to quarantine, local officials should take steps to provide them with a safe place in the community to quarantine for 14 days before returning to their families, as well as publicly support and coordinate with community officials to ensure access to and retention of housing for returning individuals and their families.
Recommendation 7: Parole and probation departments should examine their policies and procedures and take quick action where needed to reduce the impact of community supervision on the spread of COVID-19. Such action should include administratively eliminating or greatly limiting revocation for technical violations, replacing in-person office visits wherever possible with noncontact means of collecting supervision reports, and removing conditions on parole or probation that require
an individual to apply for or obtain work. Courts and paroling authorities should limit the application of probation and parole to those who absolutely need community supervision and reduce the terms of probation and parole to only as long as necessary to achieve the goals of supervision.
Recommendation 8: States should remove barriers to eligibility for Medicaid to ensure that incarcerated and previously incarcerated individuals have access to COVID-19 tests and related services and transitional health care needs:
- Exercise the optional eligibility provided in the Families First Coronavirus Response Act to provide Medicaid coverage for COVID-19 testing and related services to individuals who are uninsured;
- Allow Medicaid payment for medical services furnished to an incarcerated individual during the 30-day period prior to that individual’s release;
- As long as statutes preclude Medicaid reimbursement for incarcerated individuals, states should opt to suspend, not terminate, Medicaid eligibility when an individual is incarcerated and exercise their authorities to apply for section 1115 and 1135 waivers of the Social Security Act to expand Medicaid coverage or support access to covered services for incarcerated individuals during the COVID-19 crisis; and when they do so, the Centers for Medicare & Medicaid Services should take steps to facilitate the speedy review of and decision on such waivers; and
- Enroll individuals eligible for Medicaid during incarceration, prior to their release.
Past research on pandemic management in correctional facilities suggests that preparedness planning is critical to management of future COVID-19 outbreaks and other public health emergencies. Preparedness planning involves public health experts and correctional officials and the creation of plans for safely diverting and releasing people from custody during a public health crisis. The goal of this work would be to weigh medical criteria and public health considerations against criminal justice purposes to develop community standards for safely diverting and releasing people from custody during public health emergencies and improve the preparedness of correctional systems.
Data Needs and Research Recommendations
There is a lack of consistently defined, publicly available data on COVID-19 testing, infection rates, hospitalizations, and deaths in prisons and jails, largely due to the isolation of the correctional health system from the nation’s larger public health infrastructure. This lack of data also obscures racial disparities in COVID-19 testing, treatment, and outcomes in corrections. Without systematically collected data and research and evaluation of decarceration efforts, it is difficult to improve on evidence-based guidance about how to mitigate and prevent SARS-CoV-2 transmission and to integrate efforts within correctional facilities into the nation’s collective public health mission during the pandemic. As a result, several fundamental research questions have gone unstudied. The committee formulated two recommendations specific to data needs and research. These recommendations highlight the need for data standardization and transparent reporting across jurisdictions, as well as monitoring and evaluation research on the causal relationship between incarceration and community health and the effectiveness of decarceration strategies.
Recommendation 9: All correctional facilities (including jails, state and federal prisons, detention centers of the U.S. Immigration and Customs Enforcement, and juvenile facilities) should report daily standardized, aggregated data on COVID-19 incidence, testing rates, hospitalizations, mortality, and all-cause-mortality among incarcerated people and staff by age, gender, and race/ethnicity to public health officials as directed and via a public-facing website or dashboard. All correctional facilities should also report daily standardized, aggregated data on decarceration efforts (especially releases) by age, gender, and race/ethnicity via a public-facing website or dashboard.
Recommendation 10: State and federal research infrastructures should invest in the monitoring and evaluation of the changes in operations and targeted COVID-19 release mechanisms in correctional facilities to document the impact of such efforts on correctional health, public safety, public health, and racial equity. The research undertaken to systematically monitor and evaluate decarceration efforts should facilitate transparency and evidence-based decision making in criminal justice. Researchers and funders should support a fully formed research program on the implications of incarceration for the transmission of infectious disease that extends beyond the adult criminal justice system to include juvenile incarceration, immigration detention, and other forms of detention. Furthermore, research should aim to examine the mutual
influence of community and correctional facility on the transmission of disease, including the influence of community health conditions on the prevalence of infection and virus transmission inside correctional facilities and the influence of correctional facilities on associated communities.
Decarceration in the service of public health will require sustained engagement among public officials and correctional and health leaders at the federal, state, and local levels as well as actors within community health and social services systems. In the perspective of this report, public safety encompasses good public health. Institutions for incarceration have been the sites of numerous outbreaks of infection and in this sense have posed a threat to public safety. Good health and safety in the pandemic era will require reducing incarceration and supporting the communities whose incarceration rates are highest.