[This is an advance copy of an article that will appear in print in September 2020 as part of the KIEJ’s special double issue on Ethics, Pandemics, and COVID-19.]
ABSTRACT. The wide-ranging effects of the COVID-19 pandemic have amplified social inequalities and revealed vulnerabilities in public systems. These dual effects are especially salient in the context of criminal justice systems, and activists and policymakers have called for reconfiguring justice system practices in response. This paper discusses and defends one of these proposals: rapidly reducing the number of people currently incarcerated by releasing people from jails and prisons. Drawing on moral and political philosophy and criminal law theory, I provide a rigorous case for why it is morally unjustified to continue to incarcerate people as usual under present circumstances—this position is intuitive to many and already reflected in emergency policies in jurisdictions worldwide. The paper proceeds by way of two arguments. First, I argue that we ought to release people from jails and prisons to prevent meting out disproportionately severe punishments, which are unjustified on standard theories of punishment. The second argument appeals to what I call the public interest constraint on criminal law policy: defending the idea that we ought not make use of the instruments of the criminal law if the downstream consequences of doing so run contrary to public welfare and wellbeing or undermine the provision of substantive common goods. I argue that circumstances related to the coronavirus pandemic trigger the constraint. Though the idea that we ought to take broad social costs into account in designing criminal justice policy may seem intuitive, it has radical implications for thinking about decarceration and the ethics of justice system practices during the coronavirus pandemic and beyond. In the last part of the paper, I propose and discuss three concrete policies that work to mitigate some of the potential negative consequences of emergency release.
The effects of the present COVID-19 crisis transcend national and social borders, requiring all of us to adapt to ever-changing, unprecedented circumstances. While in some respects these experiences are shared, the impact of the crisis has been disproportionately harmful for those who were already socially vulnerable: low-income people and workers who are precariously employed, people with disabilities and chronic health issues, unhoused people, people who depend on now-defunct public services, and, as will be the focus of this paper, incarcerated people.
In response to the pandemic, state, local, and federal governments have enacted policies that would be politically unthinkable in normal circumstances. The US federal government, for instance, passed a $2 trillion relief bill, the largest stimulus package in the country’s history. At the same time, local governments have enforced unprecedented social distancing measures in response to stay-at-home orders. In these domains and others, the crisis has recalibrated the realm of political possibilities.
Correspondingly, given the unique, serious threat of illness outbreaks in jails and prisons, the coronavirus pandemic has sparked the proposal and implementation of new, radical changes to criminal justice system practices. In attempts to reduce jail and prison admissions, many prosecutors, citing their discretion, have opted to decline to prosecute many low-level crimes. There has also been pressure to rapidly decrease the number of people who are currently incarcerated. Some have proposed temporarily releasing people convicted of low-level offenses, while more radical voices have called for shutting down jails and prisons altogether.
Broadly speaking, the case of incarceration during COVID-19 offers an extreme example of how socially vulnerable people are especially burdened by disasters and crises. Correspondingly, the case invites us to radically rethink present policies. Reimagining the design of our criminal justice system is especially relevant in the context of ongoing demands for decarceration amidst mass #blacklivesmatter protests across the United States in response to the murder of George Floyd and other recent instances of police violence. By centering public health and safety when designing criminal justice policy, emergency release and other unprecedented strategies can offer a blueprint for reducing the size and scope of the criminal justice system during the present pandemic and beyond.
The moral impetus to change justice system practices because of the threat of the pandemic is felt worldwide. The Prison Policy Initiative reports that Turkey has reduced its prison population by 90,000, or 31 percent, since the onset of the crisis (Widra and Wagner 2020). Iran has followed suit in reducing its prison population by 70,000, or 29 percent (ibid). Other countries have implemented more modest reductions. In the United States, while local governments have made efforts to reduce jail populations, state and federal prison populations have remained staggeringly high. The number of people incarcerated in jails is estimated to have decreased by 25 percent since the start of the crisis, with jurisdictions implementing measures to release people charged with low-level crimes, awaiting trial, close to finishing their sentences, as well as elderly people and those with underlying health issues. On the other hand, the Federal Bureau of Prisons and several states, including South Carolina, Mississippi, Alabama, Arizona, and Pennsylvania have only reduced prison populations by less than 3 percent (ibid).
This paper discusses and defends the practice of releasing incarcerated people from jails and prisons in the face of the present pandemic. Drawing on moral and political philosophy and criminal law theory, I provide a rigorous case for an idea that is intuitive to many and already realized in public policies in several jurisdictions: that it is morally unjustified to continue to incarcerate people as usual under present circumstances, and that we ought to implement policies to radically reduce the number of people currently incarcerated.
I provide two arguments in defense of this position. The first, the proportionality argument, maintains that we ought to release people from jails and prison in order to avoid their punishments becoming disproportionately severe and, correspondingly, unjustified on standard theories of the justification of punishment. The second argument appeals to what I call a public interest constraint on criminal law policy: defending the idea that we ought not make use of the instruments of the criminal law if the downstream consequences of doing so run contrary to public welfare and wellbeing or undermine the provision of substantive common goods. Though the idea that we ought to take broad social costs into account in designing criminal justice policy may seem intuitive, it has radical implications for thinking about institutional design during COVID-19 and beyond; I discuss these issues further in conclusion of the paper.
I conclude the discussion by identifying some of the relevant classes of costs and benefits associated with implementing emergency release policies that we ought to take into account in applying the public interest constraint. In response to those considerations, I propose three concrete policy solutions that work to mitigate potential negative consequences of early release: the creation of emergency parole boards, the provision of testing for potentially-affected people (or, alternatively, non-carceral quarantine provisions), and comprehensive reintegration support for people released from jails and prisons.
While the proportionality argument is based in generally accepted justificatory standards in criminal law theory, the discussion of the public goods constraint asks that we reorient our normative theorizing by taking a broader set of costs into account in designing criminal law policy. Note that the arguments need not be accepted in tandem; I imagine many readers will be on board with the first but more hesitant about second.
Though my discussion centers on the case of the criminal justice system in the United States, since it is the context with which I am most familiar, the arguments are certainly applicable elsewhere. Moreover, the issues discussed here will largely apply to immigration detention and ICE (Immigration and Customs Enforcement) enforcement activities too, though jails and prisons are my focus.
THE PROPORTIONALITY ARGUMENT
Here are some relevant facts about the issue in the US context: Prior to the coronavirus pandemic, there were 2.3 million people in jails and prisons across the country. Many of these people, approximately 470,000, were awaiting trial and thus not yet convicted of a crime (Sawyer and Wagner 2020).
There is consensus among experts that elderly people and people who have preexisting health issues—like chronic lung disease, moderate to severe asthma, diabetes, kidney or liver disease, heart conditions, and immunocompromised people—are most likely to become severely ill if they are infected with COVID-19. Incarcerated people are disproportionately likely to have these serious health issues, which are often exacerbated by virtue of incarceration (Binswanger et al. 2012). Moreover, a substantial proportion of people incarcerated in the United States are elderly. The number of older incarcerated people has increased rapidly in recent years—a product of draconian sentencing and strict parole policies. A report by the Osborne Association predicts that by 2030, one third of the incarcerated population in the US will be over fifty (The Osborne Association 2018).
At the same time, prisons and jails have limited medical facilities that are ill-equipped to deal with COVID-19 outbreaks. Moreover, given the physical structure of jails and prisons, it is especially difficult to implement social distancing measures and contain the spread of communicable diseases. In an interview reported in The Intercept, a man incarcerated in a maximum-security facility in New York State remarked, “There’s no such thing as social distancing in prison. … How can an incarcerated individual maintain social distancing in a population of over 2,000? With 240 men to a block, minus the guards? With every man dwelling on all sides of one another, constantly?” (Speri 2020).
As a result of these conditions, many jails and prisons in the US and elsewhere have become hotspots for the virus. In May 2020, the New York Times reported that correctional facilities comprise ten of the fifteen “clusters” with the largest number of reported infections in the United States (The New York Times 2020). The Marion Correctional Institution in Marion, Ohio offers an especially grim example. By mid-May, over 2,000 people, 80 percent of those incarcerated there, have tested positive (The New York Times Editorial Board 2020). 154 members of the 350-person staff tested positive as well (ibid.).
As of May 2020, the Vera Institute of Justice reports that there are 20,000 confirmed cases of COVID-19 in jails and prisons and 325 related deaths (Vera 2020). The number is likely much higher—it is difficult to know the scale of the problem because, even in the United States, data is decentralized.
Given that people of color and members of other socially disadvantaged groups are vastly overrepresented at all levels of the criminal justice system, including in jails and prisons, the crisis of COVID-19 and incarceration is starkly racialized as well; the pandemic inherits and compounds existing disparities in the justice system. Correspondingly, quelling ongoing outbreaks in jails and prisons is a matter of substantive racial justice and justice for members of intersectionally oppressed groups. As I discuss in later in the paper, the impact of the criminal justice system in “normal” circumstances ought to be worrisome for prioritarians or anyone concerned with the wellbeing of socially disadvantaged people, given that the system’s structural features work to make those who are already poorly off worse off yet. To the extent that the COVID-19 crisis intensifies the effects of incarceration to make people even worse off, it is a disaster for social equality.
My concern in this section of the paper is whether the punishments endured by those incarcerated under present, non-ideal circumstances related to the COVID-19 epidemic can be morally justified. Punishment, by definition, involves the infliction of burdensome sanctions and deprivations. Punishment also expresses censure, or public condemnation, of people’s actions. In order for the state to inflict deprivations on its citizens, moral philosophers have generally agreed that legal punishment requires robust moral justification. Though there are a variety of approaches to justifying legal punishment, they fall into two major camps: retributivism and consequentialism.
Retributive justifications of punishment draw on the notion of desert, requiring that the state be justified in inflicting punishment X on person A. More specifically, A deserves X because of wrongdoing Y. For retributivists, punishment is a deserved response to wrongdoing. In addition to justifying why we can punish at all, retributivists must also consider how much punishment the state is justified in inflicting. There, they draw on principles of proportionality, which require that the severity of a punishment be a function of the seriousness of the crime. Less serious crimes merit less severe punishments, and vice versa.
Consequentialists require not that punishment is a deserved response to wrongdoing, but rather that we are justified in punishing people because doing so ultimately yields positive consequences. Correspondingly, consequentialists usually appeal to punishment’s ability to rehabilitate and incapacitate people, and to deter them—both the person punished and the general public—from committing (future) crime. Thus, punishment is justified because, though it involves imposing harm, it ultimately curbs crime and produces net good. Consequentialist theories of punishment must also account for severity, since punishment is only justified to the extent that it achieves the good at which it is aimed. Hence, consequentialists care about proportionality, too, albeit indirectly.
For both types of theories, then, whether some instance of punishment is justified depends on its severity. But how do we measure severity? Philosophers have proposed different metrics. Some have suggested measuring punishment severity objectively, by considering the extent to which a person is made worse off by virtue of being punished. Andrew von Hirsh, for instance, suggests measuring punishment severity in terms of how it impacts people’s “living standards,” or the resources and capabilities necessary to achieving an acceptable quality of life (1998, 60). An alternative approach, endorsed by Adam Kolber and others, is to measure punishment severity subjectively—in terms of the actual amount of suffering the person being punished endures (2009). Kolber’s approach obliges us to account for the psychological effects of punishment in addition to its observable, objective effects on wellbeing.
Drawing on the standard conceptions of punishment justification and metrics of punishment severity, I’ll provide a relatively simple argument for the unjustifiability of incarcerating people during the present pandemic. Let’s start by assuming that under normal circumstances—absent issues stemming from COVID-19—people were sentenced proportionally and that their punishments were justified. We can then apply the following to principles to those cases:
PROPORTIONALITY-JUSTIFIABILITY: Only proportionately severe punishments are justified, and substantially increasing the severity of instances of justified punishment makes those instances unjustified.
COVID-19 SEVERITY: In many cases, circumstances related to COVID-19 substantially increase punishment severity.
The two principles lead us to the following conclusion:
COVID-19 JUSTIFIABILITY:In many cases, instances of punishment (given the circumstances of COVID-19) are unjustified.
Accepting the conclusion means that if we continue incarcerating people as normal under present circumstances, we will effectively enact many unjustified punishments. This outcome should clearly be avoided.
The rest of this section is structured as follows: first, I will defend PROPORTIONALITY-JUSTIFIABILITY and COVID-19 SEVERITY, the former discussion being much briefer than the latter. Then, I will consider and respond to an objection to COVID-19 SEVERITY: that we need not account for harms related to the pandemic in assessing punishment severity, given that they were not intentionally imposed on people by the legal system or its actors.
PROPORTIONALITY-JUSTIFIABILITYreflects the consensus among criminal law theorists: that punishment is only justified if it is appropriately severe. Correspondingly, inappropriately severe punishments are unjustified. We can understand appropriateness or proportionality in terms of retributivist and consequentialist theories of punishment.
For the retributivist, the severity of the punishment becomes disproportionate when compared to the seriousness of the crime. If the seriousness-severity calculus was justified at the outset, making a punishment for the same crime more severe disrupts it, in turn making this instance of punishment unjustified. For the consequentialist, the potential goods associated with justified punishment outweigh the harm it inflicts on individuals; similarly, increasing harms on individuals throws a wrench into the cost-benefit analysis, making previously justified harms potentially unjustified.
We can understand COVID-19 SEVERITYin terms of the accounts of punishment severity described above and the conditions in prisons and jails during the pandemic. I mentioned two possible metrics for evaluating severity above: (i) effects on “living standards” and (ii) subjective experiences of suffering. The present pandemic makes punishments more severe in both of these senses. On the living standard view, punishments are more severe to the extent that they threaten the capabilities and resources necessary to have a reasonable standard of life. Health is clearly among the relevant capabilities; long term effects on one’s health (and obviously, death) make it more difficult or even impossible for people to have a high quality of life. Even in minor cases, contracting an illness makes people temporarily worse off; in severe cases, those effects are even more pronounced.
The subjective case is analogous. Though subjective and objective effects can be difficult to pick apart, it is clear that serious illness makes people suffer, subjectively speaking. Moreover, the constant stress of living in a high-risk environment related to ever-present risk of contracting the disease can lead to mental anguish as well. This stress is compounded by being unable to visit with family, many of whom are suffering due to the virus at home. One person incarcerated in New York during the pandemic reported, “I haven’t been this stressed out since I was on trial … it’s the fear of calling home and finding out someone else I held close to the heart passed away. It’s the fear of never being able to see someone I love ever again and not being able to pay my proper respects” (Speri 2020).
Note that circumstances related to COVID-19 will make people’s punishments more severe in many, but not all cases. Some people who are incarcerated amidst the current crisis may not experience any increase in punishment severity because of present conditions. There are two variables that increase the possibility that cases of punishment will become disproportionately severe: (i) the likelihood that people will become seriously ill if they contract the virus and (ii) the severity of the punishment they were assigned in the first place. Though people contracting communicable diseases in part because of their incarceration is morally worrisome in all cases, it is especially so when people are serving short sentences for minor crimes and are at a high-risk of dying if they do become infected. As I will discuss in the last section of this paper, these variables ought to be taken into account in designing emergency policies.
The issue of the disproportionality is especially worrisome for those who are detained pretrial. People detained pretrial have not been deemed deserving of punishments at all since they are not yet convicted. Putting people at a high risk of becoming seriously ill despite their legal innocence requires robust moral justification. We cannot appeal to desert here since people are legally innocent and are thus left with consequentialist justifications, and more specifically, incapacitation. As I will discuss in the following section, it seems that we need to carefully evaluate whether people pose acute threats to public safety in making judgements about the justifiability of incarcerating them under present circumstances.
I’d now like to consider an objection to the view defended here: that we need not take the harms associated with (potential) COVID-19 infection into account when calibrating punishment severity because those harms are not intentionally imposed by legal system actors.
This objection reflects a commonplace condition that criminal law theorists place on punishment: to count as punishment, a harm or deprivation need be intentional. H.L.A. Hart, for instance, requires that punishment be “intentionally administered” and “deliberate[ly] impos[ed]” (Hart 2008). Correspondingly, criminal law theorists can avoid the burden of justifying the collateral consequences of incarceration or the violence that inevitably takes place in jails and prisons on the grounds that those deprivations are not intended and do not need to be justified as punishment or taken into proportionality calculations. Call this the “Unintentional Objection.”
I will provide a two-fold response to the “Unintentional Objection.” First, I argue that the notion that punishment need be intentional in the first place may be confused, given (a) our intuitions about punishment severity and (b) the lack of clarity about whose intentions matter and what the objects of the relevant intentions are. The second element of the objection is that even if intentions are necessary for punishment, punishment theorists must justify the unintentional consequences of punishment too; thus, even if unintentional, inordinately severe punishments may be unjustified.
Kolber draws on this idea in his “Unintentional Punishment” when he shows that “our intuitions about the severity of punishment take into account more than just intentionally produced hardships” (Kolber 2012, 5). Kolber asks us to imagine a case where two offenders—he calls them Purp and Fore—endure what appear to be identical 3-year prison sentences. However, while the judge who sentenced Purp intended the myriad harms she experienced in prison, the judge who sentenced Fore merely foresaw those harms, only intending that Fore’s freedom of movement be limited. The issue is that if one requires that only intended deprivations be counted when measuring the severity of punishment, then Purp’s punishment was significantly worse than Fore’s. But to any outside observer—and indeed to Purp and Fore themselves—the conditions of their confinement were identical, and their punishments comparably severe.
One way to frame the issue is to note that the intention requirement on punishment puts too much stake in what’s in the heads of decision-makers as opposed to existing institutional practices. As Kolber notes, we intuitively think that “the mental states of their punishers (be they judges, prison personnel, legislators, voters, or some combination of all of these) do not affect the severity of their sentence” (ibid., 16).
The counterintuitive implications in Kolber’s case reflect deeper worries about whose intentions matter in the first place, an issue to which—to my knowledge—no criminal law theorist has managed to respond successfully. Doug Husak describes the problem:
Thus we must decide whose intentions should be taken as decisive in categorizing an expression as an instance of censure. Should we focus on the intentions of legal officials, the beliefs of the person to whom the expression is directed, the public at large, or some other agent(s) altogether? Even if we restrict our attention to the expressions of legal officials—probably the most common answer—we must decide what to say when their intentions diverge. The problem is not simply that of locating a single intention in a legislative body composed of several individuals. Even if this familiar difficulty could be surmounted, the intentions of the legislature and that of a judge (not to mention those of other legal officials) might well differ in a particular case. (2019)
As Husak notes here, even if we can decide whose intentions matter in the first place, we will reasonably select a group of people (as opposed to an individual), which gives rise to another problem: what to do when their intentions diverge.
Another equally concerning worry pertains to what the content of the intention in question is and whether we can even coherently formulate it in the first place. Intentions are typically thought to be propositional attitudes, involving (i) a pro-attitude towards some desirable state and (ii) a belief that a certain action will achieve that desired state. Here, the pro-attitude would be directed towards proportional punishment—i.e., punishment of a specified severity. But given that criminal law theorists differ immensely in their accounts of how to measure severity, there are likely to be huge variations in what intentional infliction means for them; the issue is likely worse for actors in the criminal justice system, given that they may attach disparate objects to the intention. Thus, the problems for the intention requirement may run deeper—is it even coherent to think that we can form an object of intentions to punish?
I think that considering these counterintuitive implications of the intention requirement, and the lack of a clear account of (i) whose intentions matter and (ii) what the intention ought to look like, the case for the intention requirement does not look strong. Further, I think the requirement works to distance us—in our theorizing—from what normally looks like punishment in its lived reality.
But even if one does want to hang on the intention requirement, they cannot avoid the issues of justification upon which this critique rests; in other words, even if one thinks that the allegedly unintended features of incarceration described do not constitute punishment and should not be considered in the proportionality calculus, those foreseen consequences need still be justified somehow. Of course, just because an outcome is not intended but only foreseen does not mean that a foreseen side effect is de facto justified. For instance, if I intend to bake a cake, foreseeing that it would burn down your house if I do, the foreseen consequence of burning down your house is not simply justified because I did not intend it. The same applies to the unintended consequences of punishment.
Kolber defends the view that the state must justify the foreseen consequences of punishment by drawing on what he calls the Justification-Symmetry Principle.
JUSTIFICATION-SYMMETRY PRINCIPLE: any state actor who harms an offender in the name of just punishment must have a justification for doing so if you or I would need a justification for causing the same kind of harm to nonoffenders. (2012)
For Kolber, the state has the same justificatory burdens as individuals; if the state imposes a harm, they, too, like individuals, must justify it. This applies to both foreseen circumstances of punishment, as well as intended consequences. Applying the principle to the case of the pandemic, it is clear that exposing someone to a very high risk of contracting a virus against their will warrants justification.
Further, Kolber notes that if the punishment theorist still wants to maintain that they need not build the justification of foreseen consequences into their theory, theories of punishment become grossly “anemic.” They may defend what Kolber calls a “shadow theory,” wherein the many unintended deprivations associated with incarcerations need be justified not by a theory of punishment, but rather some other additional political or moral theory. Kolber notes that,
this strategy leads to a surprisingly anemic version of retributivism. By claiming that a theory of punishment need not justify a certain purposeful infliction, this strategy implicitly concedes that retributivism cannot, on its own, justify punishment practices like incarceration, because the incarceration of any particular offender will inevitably have foreseen and foreseeable side effects. (ibid., 16)
In other words, the strategy estranges the criminal law theorist from being able to justify anything that looks to be punishment in our present criminal law institutions.
Thus, on one hand, there is reason to doubt that intention should be a necessary condition of punishment in the first place, and if it is, theories of punishment need some account to justify those unintentional harms, or else they run the risk that their theory is too anemic to justify anything resembling punishment under present conditions.
I think these worries should lead us to abandon the intention requirement on punishment severity. But even if we want to hold on to the condition, the unintentional harms associated with incarcerating people during COVID-19 must be justified nonetheless. When we take these nonintentional harms into account, many individual instances of punishment will become disproportionately severe and, since justification requires appropriately severe punishments, unjustified.
If we continue incarcerating people as normal under present circumstances, we will effectively dish out many unjustified punishments. Clearly, we ought to avoid this outcome. One way to do is to implement emergency release policies, which I will describe in more detail in the following section.
THE PUBLIC INTEREST CONSTRAINT
The preceding section made a relatively simple argument from within the bounds of criminal law theory—on standard views of the justification of punishment and metrics of punishment severity, punishing people given the circumstances related to COVID-19 will often be unjustified. This section is more controversial, defending the idea that we ought to take a broader set of factors into account in evaluating the moral justifiability of criminal law policy. This discussion is especially salient in the context of the coronavirus crisis, though the approach works to reorient our thinking about the role of the criminal law more broadly.
My basic argument is that (1) we ought to think about the criminal law as a vehicle for promoting legitimate state interests, and correspondingly, that the justice system must be held to the same justificatory standards as other state institutions. Among these standards is the idea that (2) institutional policies must be in the public interest: public policies and practices are unjustified if they either undermine the wellbeing and welfare of the general public or undermine the provision of common goods (to the extent that those negative effects are not outweighed by comparably positive effects on public welfare or common goods). In the case of the coronavirus crisis, (3) enacting criminal law policy as usual ultimately threatens public welfare and wellbeing and undermines the provision of common goods, triggering the constraint. I will begin with a broad discussion of (1) and (2), moving to consider how the discussion bears on the present crisis (3) at the end of the section.
It is a mistake to think about justificatory questions related to the use of the instruments of the criminal law as existing on some normative island, where all that matters are a limited set of concerns related to interpersonal morality. It is important that we inquire not only about the wrongfulness of acts and the calibration of appropriate punishments but also about the broader unintended downstream consequences of the justice system, including, for instance, its impact on social equality or public health. On my view, in making policy-relevant normative claims in criminal law theory, we should take into account present, non-ideal realities and consider the impact of the criminal law on social goods, broadly construed.
My approach aligns with what has been called a public law conception of the criminal law. Vincent Chiao, who endorses a public law view, notes that the criminal law is
an integral component of society’s basic structure, and should be understood and justified in those terms, regardless of whether it does or does not additionally punish moral wrongdoing as such. (2016, 139)
Anthony Duff endorses a similar view of the criminal law and the state in his Realm of the Criminal Law, requiring that the goal of criminal justice systems be to “help to constitute as well as to sustain what we call the ‘civil order’ of the polity,” where the civil order is conceived as a “set of goals and values through which a polity constitutes itself … as a political community” (2018, 7). Duff maintains that “we must therefore theorize criminal law as part of the institutional structure of the political community…[I]ts institutions must be theorized in terms of their contribution to the polity’s existence and its good” (ibid., 149).
Conceiving of the criminal law as first and foremost a subsidiary of the state and vehicle for promoting its interests has important effects on normative theorizing. Specifically, it leads us to endorse a Justification-Symmetry Principle, not much unlike one defended by Kolber in his discussion of whether the state is justified in imposing unintentional harms on incarcerated people. Remember that Kolber requires that harm imposed by state actors warrants justification if any person, “you or I,” would need justification in imposing that harm (2012). Kolber’s principle requires that we hold criminal law practices accountable to standards outside of the criminal law’s domain; similarly, we may endorse:
CRIMINAL LAW JUSTIFICATION SYMMETRY: criminal law policy ought to be held, at minimum, to the same justificatory standards as other public policy.
The idea here is that the criminal law is not an exceptional moral domain; its institutional practices ought to be accountable to the same moral standards that bear on other public institutions. For instance, if criminal law policies have morally-relevant negative consequences, they need to justify them, in the same way other institutions must. Further, it is plausible that criminal law policy ought to be held to even higher justificatory standards given that the criminal law inherently involves infringements on individual liberties, both in terms of the acts it prohibits and the restrictions associated with legal punishment.
Now, determining the justificatory standards that ought to apply to state institutions is a controversial behemoth of a topic, tied to one’s big-picture views of what justifies the existence of the state and its practices. We can imagine, for instance, a Rawlsian application of CRIMINAL LAW JUSTIFICATION SYMMETRY. For Rawls, institutions are the subjects of inquiry about social justice given that “major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” (Rawls 1971, 6). Rawls gives us two principles of justice that ought to apply to those institutions. First, institutional structures must be compatible with each person having an indefeasible claim to a fully adequate scheme of basic liberties compatible with a similar scheme for others. Second, social and economic inequalities that result from institutional practices are justified if they (i) are attached to offices and positions open to all (Equality of Opportunity) and (ii) are to the greatest advantage to the least advantaged in society (The Difference Principle).
If we accept Rawls’s approach and CRIMINAL LAW JUSTIFICATION SYMMETRY, we ought to hold criminal justice institutions accountable to these principles of justice, too. This has important results. Consider Rawls’s restrictions in light of the fact that socially disadvantaged people are more likely to be involved in the justice system and are usually made worse off by virtue of their involvement. Though more details of the case are needed, it may be that the inequalities generated by criminal justice system practices in general violate the Difference Principle and thus require revision.
Most criminal law theorists would likely accept a version of the CRIMINAL LAW JUSTIFICATION SYMMETRYprinciple. After all, rejecting it would require arguing that criminal law institutions are not sensitive to the same sorts of concerns as other state institutions, which seems implausible. The scope of morally-relevant questions related to criminal justice institutions is often neglected—these institutions are many-noded beasts! From policing to court processes to incarceration, the system presents an array of difficult normative concerns. Among these are questions about what to criminalize, what collateral consequences should be attached to convictions, how the police ought to behave, and when to refrain from using the instruments of the law altogether. How we answer them will have important, morally-relevant effects on individuals and society at large. The institutional architecture of criminal justice systems at all of these levels ought to be accountable to the justificatory standards to which we hold other public policy and take into account the presence of background inequalities. Below I will focus on one crucial node in the justice system apparatus: choices about what to criminalize.
Of course, it is well beyond the scope of this paper to defend a view of the moral limits of public policy. Rather, I want to present what I imagine to be a flexible and relatively uncontroversial constraint on public institutional practices.
THE PUBLIC INTEREST CONSTRAINT: A public institutional policy or practice is unjustified if it undermines the welfare and wellbeing of the general public or undercuts the provision of substantive common goods.
The constraint should be understood in terms of costs and benefits: either that a policy or practice does more harm than good for the welfare or wellbeing of the general public or it undermines the provision of common goods more than it promotes them. The concept of common goods is admittedly obscure. Here I intend to refer to a privileged set of interests that many of us share and that public institutions are tasked with promoting. Waheed Hussain’s Stanford Encyclopedia of Philosophy entry on the topic provides a helpful taxonomy of these.
The interest in taking part in the most choiceworthy way of life (Aristotle Pol. 1323a14–1325b31); the interest in bodily security and property (e.g., Locke 1698; Rousseau 1762); the interest in living a responsible and industrious private life (Smith 1776); the interest in a fully adequate scheme of equal basic liberties (Rawls 1971; 1993); the interest in a fair opportunity to reach the more attractive positions in society (Rawls 1971); and the interest in security and welfare, where these interests are understood as socially recognized needs that are subject to ongoing political determination (Walzer 1983). (Hussain 2018)
I will not defend any fleshed-out conception of the common good in this paper. I hope that the reader will accept the general form of the constraint, filling in the conception of public goods as they like. One may opt to include all concerns listed above, just some of them, or some that aren’t listed. Soon, I will argue in favor of the more modest idea that criminal justice policies that undermine public health, perpetuate inequalities, and communicate a public lack of concern for incarcerated people undermine the provision of common goods.
Together, CRIMINAL LAW JUSTIFICATION SYMMETRY and THE PUBLIC INTEREST CONSTRAINT leave us with the following principle: that criminal justice system practices are unjustified if they undercut substantive common goods, or where the negative effects on substantive common goods are outweighed by the practice’s positive effects on public goods. I take the two principles that yield this conclusion to be fairly uncontroversial, so perhaps the argument is convincing on its own. Moreover, though, the principle aligns with reasonable consequentialist and retributivist approaches to criminal law theory.
The public interest constraint and the idea that criminal law institutions are not immune to the norms that govern other public institutions reflect a consequentialist picture of the justificatory aims of the criminal law, since many of the relevant costs and benefits will likely be factored into consequentialist calculations in the first place. However, the constraint is not straightforwardly consequentialist and ought to be convincing to those who do not endorse that approach. More specifically, I am not committed to the idea that (i) consequences are all that matter or that (ii) all consequences matter. My view is, rather, that in thinking about the criminal law as a political instrument, there are some classes of costs we must care about—specifically, those that have negative effects on substantive common goods and threaten the welfare and wellbeing of the general public.
Those who opt to focus on more narrow aims like retributive justice in approaching justificatory questions about the criminal law ought to be concerned with public goods too. No plausible theory of the criminal law can mandate achieving retributive justice at the expense of all other social goods; rather, retributive justice should be conceived as one good among many. This idea is reminiscent of Chiao’s discussion of the functional priority of cooperative rule enforcement over punishment (2016). My contention is that among the costs that must be considered are those that are relevant to public interests.
This idea is supported by our intuitions in cases where enacting retributive justice (via criminal law policies) clearly runs contrary to public interest:
Expensive Enforcement: suppose that some state is considering whether to criminalize the distribution of some drug C. Drug C is not very popular, though it is harmful; stipulate that because of this, distributing C is wrongful, and people who do it deserve to be punished. However, because of some details about C, detecting people who distribute C is incredibly expensive. In order to detect and prosecute C distributors, the government considering criminalizing C would have to significantly reinvest funds from other social welfare programs: housing, education, etc. Suppose, too, that providing housing, education, and social welfare are in the public interest.
We would need to fill in more details of the case to conclude that the state would be unjustified in criminalizing C; nonetheless, it is clear that public goods must be taken into account in making a decision about C-criminalization, even for a staunch retributivist. Demands of legal moralism cannot trump all other concerns.
Applying the constraint allows us to frame the issue of COVID-19 and emergency release as follows: circumstances related to the present crisis have made it so that the extent to which incarcerating people threatens public welfare and wellbeing and risks undermining important public goods is greater than usual. These negative consequences warrant justification; morality demands that we take them into account in justifying criminal justice system practices. Continuing to incarcerate people as usual will be unjustified if doing so ultimately undermines public welfare or other public goods—if the negative consequences of justice system practices outweigh its public benefits.
Unsurprisingly, working out whether continuing to incarcerate people as usual does ultimately run contrary to public welfare and common goods leaves us with a messy cost-benefit calculus. In what follows, I will try to enumerate some important classes of costs and benefits. I will first consider three classes of negative effects of continuing to incarcerate people as usual that work against public welfare and other common goods. Second, I will consider some of the unwelcome consequences of implementing broad early release policies, considering how we ought to design policies in response to those challenges.
Though I have chosen to focus on the case of early release here, there are analogous reasons in support of changing other criminal justice system practices under present conditions—for instance, declining to prosecute low-level crimes, as many prosecutors have opted to do.
Let’s begin by considering the consequences of not making changes to criminal justice policy in light of the present crisis—continuing to require people to complete their sentences as usual. I see there being three classes of new costs of continued incarceration that result from maintaining the status quo amidst the present crisis: (i) public health effects, (ii) effects on social equality, and (iii) communicative effects. Importantly, all of these results run contrary to public interest in the sense evoked in the public interest constraint.
Costs of Continued Incarceration
(i) Public health effects
The public health costs of many new COVID-19 infections—resulting in this case, from policy decisions—should be worrisome to everyone. One facet of this is the effects on incarcerated people directly: given the size of the criminal justice system in the United States, nonintervention may lead to the potential infection of millions of incarcerated people. These people are disproportionately high risk and will be most often exposed against their will.
But continuing to incarcerate people will have broader effects as well. A recent study produced by the ACLU noted that existing epidemiological models failed to account for the impact of the virus on the incarcerated populations. Given inevitable contact between carceral facilities and the “outside” world, outbreaks in jails and prisons will have marked effects on the trajectory of the pandemic (ACLU 2020). The report estimates that if we fail to radically change present incarceration practices, as many as 200,000 people could die in the United States—double the number reported in many current models. The grim findings stem in part from the fact that prison staff and people who will unavoidably return home risk spreading the virus to their families and communities. And the increase in infections has indirect effects too, distressing the availability of healthcare resources for other people. The study suggests that we can save the lives of 23,000 people in jails and prisons and 76,000 in the broader community by stopping arrests for minor offenses and doubling early release rates.
Public health is clearly a central element of welfare and wellbeing and is central to protecting common goods of the sort listed above. These public health costs are factored into considerations about an array of emergency policy decisions, including the enforcement of social distancing measures. Similarly, they ought to be taken into account in designing emergency criminal justice policy.
(ii) Impact on social equality
It is well established that people in disadvantaged social positions are more likely to be involved in the criminal justice system. In a variety of contexts, racial minorities are disproportionately represented in jail and prison populations. Moreover, justice-system-involved people also tend to have lower levels of educational attainment, a problem compounded by limited access to education within carceral facilities. They also disproportionately live with serious mental and physical health issues.
The impact of the criminal justice system ought to be worrisome for prioritarians or anyone concerned with the wellbeing of the worst off given that, in practice, the system worsens their wellbeing; in a slogan, the criminal justice system works to make the worst off worse off yet. In this, it has worrisome effects on social equality.
This issue reminds us of the devastating toll the crisis is having on racial minorities more broadly. Data from several hotspots in the US illustrates that Black and Hispanic Americans are dying of the virus at rates much higher than white Americans. In Chicago, for instance, though Black Americans comprise only a third of the city’s population, they make up over 70 percent of COVID-19 related deaths (Yancy 2020). There are several plausible explanations of this effect. For one, people living in poverty, who are disproportionately members of racial minorities, are more likely to have chronic diseases like asthma, diabetes, and hypertension. At the same time, they have limited recourse to health resources, worsening the effects of poverty-related illness. These social determinants of health make it so that even in “normal” times, health and wellbeing, like other social goods, are not fairly allocated. In the case of a public health crisis, these effects are amplified.
To the extent that the COVID-19 crisis compounds the effects of incarceration to make people even worse off, it is a disaster for social equality. The perpetuation of social inequalities is an unwelcome outcome and likely runs contrary to common goods—depending, or course, on one’s worked out view of what should be involved in the common goods.
(iii) Communicative effects
Unwillingness to reconfigure criminal justice system practice amidst the current and future devastation related to COVID-19 in jails and prisons works to communicate a troubling public message: that the wellbeing of incarcerated people doesn’t matter. Against a backdrop of the historical and continued abuse and neglect of incarcerated people in the United States and elsewhere, this public-facing disregard is morally worrisome.
The communicative effects of nonintervention undermine people’s perception of the state’s priorities and values: mainly, that everyone, regardless of their membership in some social group, feels as though their interests are equally valued by the state. That everyone feels as though their interests is valued by the state clearly seems to be in public interest—perhaps constituting, on its own, a common good.
These three effects need to be taken into the justificatory calculus in determining what sorts of policies we ought to employ at the present moment. Even if all of the instances of incarceration under consideration were justified in the first place, these serious negative effects merit further justification. Note that these concerns need not be taken in tandem; public health effects alone may be sufficient to trigger the constraint. Those effects are less controversial common goods than the others; hopefully, many people will be on board with the public health costs, though I imagine people may be more hesitant about impact on social equality and communicative effects.
Costs of Early Release and Strategies of Mitigation
In order to consider whether nonintervention ultimately violates the public interest constraint, let’s now consider the negative effects of intervening by implementing broad policies that result in the release of people from prison. In my view, these issues can largely be addressed through policy design, by way of the three proposals I present below.
Three potential issues that may arise upon implementing broad emergency release policies come to mind, each of which has substantial costs. The first is the fairly obvious issue that people who are released may commit crimes, destabilizing public safety during this time of crisis. A second issue is that people may already be infected with the virus and risk spreading it elsewhere. A third issue is that people, upon being released from prison, will not have a safe place in which to return, given issues already facing the provision of social services—like services for unhoused people—during the crisis.
These are serious negative outcomes that may arise in response to the implementation of broad early release policies. However, they are not insurmountable, unlike the costs related to nonintervention. Rather, they give us important insights into how we ought to respond to the moral crisis at hand. In my view, they lend support to three concrete solutions: the creation of emergency parole boards, provision of widespread testing for those who have been exposed to the virus (and alternatively, strategies for non-carceral quarantine), and comprehensive reintegration support for those released.
(i) Emergency parole boards
For people convicted of serious crimes, decision-makers ought to be fairly confident that, upon release, they will not be serious threats to public safety, especially given the limited capacity of the justice system to deal with future crimes. Assessing recidivistic risk is notoriously difficult and many existing risk-assessment tools have worrisome discriminatory effects. Nonetheless, assessing risk in this context is very important and unavoidable. Consider, for instance, the disaster of releasing people who will commit intimate partner violence. This issue is even more worrisome given currently-in-place stay-at-home orders.
Perhaps to the dissatisfaction of the reader, it is not my goal to provide details about how these risk assessments ought to be conducted. But just as we are creating bodies of experts to deal with the impact of the crisis in other domains, we ought to do the same in creating a mechanism for making these difficult judgements. Along these lines I propose creating Emergency Parole Boards to play this role. The boards ought to be composed of social workers, health professionals, legal system actors, and community members.
It may be best if the Emergency Parole Boards proceed according to a multi-stage approach. First, people who are low-risk, including those convicted of drug offenses and non-violent crimes, along with those who are incarcerated for their inability to afford bail, ought to be released immediately. In that stage, the Emergency Parole Board should also evaluate the cases of those who are at high-risk of developing severe complications if they were to contract COVID-19. In order to substantially impact the number of incarcerated people, it is imperative to evaluate cases where people are convicted of more serious offenses as well. As Insha Rahman, Director of Strategy and New Initiatives at the Vera Institute of Justice, remarked, “If we don’t tackle the question of people serving time on violent convictions, we can’t meaningfully stop the spread of Covid-19. … That’s just not going to make a meaningful dent” (Speri 2020).
The number of people who do not pose pressing public safety threats may be higher than one assumes. A 2016 report by the Brennan Center for Justice found that 40 percent of people in US prisons and jails were incarcerated for no pressing public safety reason (Eisen et al. 2016). Drawing on criminal codes and data about recidivism and the effectiveness of non-carceral strategies, researchers found that many people incarcerated for lower-level crimes would be more effectively “punished” through alternatives to incarceration and that, in terms of public safety, we could safely shorten the sentences of many people convicted of more serious crimes.
Elderly people are especially unlikely to commit further crimes upon release. A 2017 report by the United States Sentencing Commission found that people who were over the age of sixty-five when released from prison had just a 13 percent chance of being rearrested within eight years (United States Sentencing Commission 2017). On the other hand, those under twenty-one are nearly 70 percent likely to be re-arrested. Given that the coronavirus is especially dangerous for elderly people, older people make ideal candidates for early release.
In addition to existing issues with risk-assessment tools, emergency release assessments will need to be calibrated to deal with issues related to present circumstances; data indicates, for instance, that there has been a substantial decrease in violent crime in many jurisdictions. It is likely the case that many people will not reoffend as usual.
Note that if many, but not all, people were released from carceral facilities, we could avoid many of the costs of nonintervention (i-iii above). Many of the public health costs and related consequences understood in terms of equality and communicative salience are directly related to crowding in prisons. Dramatically reducing the number of people in prisons would curb many of these effects.
Moreover, the parole boards would allow criminal justice actors and social workers to engage socially-distanced monitoring. Though I am proposing an immediate solution here, it is likely the case that issues related to COVID-19 will continue for the foreseeable future. Relatedly, the prospect of people returning to jails and prisons upon the relaxation of social distancing measures is possible, albeit logistically and administratively challenging in practice. That said, it will likely be best if the emergency release measures are permanent in many cases, following a period of virtual monitoring.
(ii) Widespread testing
Safely releasing people from prisons and jails is contingent on the availability of testing for those who have been in facilities with infected people. There is already a moral imperative to increase the availability of testing; the case of incarcerated people adds urgency to this challenge.
As a fallback, it may be possible in some jurisdictions to transfer incarcerated people to facilities where they can better practice social distancing while isolating. In this respect, New York City has made use of the city’s empty hotels, providing temporary shelter for unhoused people to slow the spread of the virus (Connelly 2020). Similar strategies could be adopted for people recently released from jails and prisons.
Along similar lines, people have proposed housing unhoused people in hotels in New York City. This could be a possibility as well.
Note that this need not apply to those incarcerated everywhere, since there are not confirmed infections in every jail and prison. In such cases, the risk of the harms above is still present and emergency release measures ought to still be implemented, though they may need not be contingent on widespread testing.
(iii) Reintegration support
For some—but notably, not all—incarcerated people, it is not obvious where they will “return” upon release. One worry is that these people may put additional stress on social services, which are already struggling to meet the needs of people who are unhoused in the face of the present crisis. As in the case with testing, I believe the case of incarcerated people adds more support to the idea that we ought to be putting substantial resources into dealing with the welfare of socially vulnerable people during the crisis.
However, it is not the case that all incarcerated people are in this position—many will have no trouble returning to friends and family. In Emergency Parole Board negotiations, the board should consider people’s reintegration plans, and people who do not have immediate plans for meeting basic needs including housing ought to be connected with social services.
This list is by no means exhaustive or comprehensive—I suggest these strategies specifically given their ability to mitigate the harms of nonintervention without running into the negative consequences of emergency release policies. Moreover, the policies need more detailed development, and their implementation will obviously be challenging. However, the problem of incarceration during COVID demands attention and radical solutions. In this domain and others, the crisis necessitates human ingenuity and the reimagination of political and institutional practices.
I hope this discussion leaves readers more confident in the moral imperative of radically changing justice system practices in light of present circumstances. I argued first that if we continue incarcerating people as usual, we will effectively dish out many punishments that are unjustified on standard justificatory theories given that circumstances related to the coronavirus crisis increase punishment severity. I then showed that there are serious issues with the idea that we need not take unintentional aspects of punishment, like the harms associated with COVID-19, into account in assessing severity and justification. Finally, I proposed an alternative approach to justifying criminal law policy: that we ought to take public welfare and wellbeing and the provision of common goods into account in assessing the justifiability of criminal law practices. I then suggested that continuing to incarcerate people as usual has substantial negative effects on public wellbeing and common goods. On the public interest view, then, those policies are potentially unjustified. I closed by proposing concrete strategies that work to mitigate the consequences of nonintervention while preserving other relevant common goods and public welfare.
This non-ideal, public interest-focused approach allows us to radically reimagine the design of criminal law policy beyond the present pandemic. Thinking of the criminal law as an institution tasked not with punishing wrongdoing but rather with promoting public interests reorients how to think about the design of the system. Correspondingly, emergency release policies implemented in response to the crisis can offer a blueprint for broader decarceration strategies. Many of the policies that contributed to the moral atrocity of mass incarceration in the United States and elsewhere do not ultimately protect common goods and promote public welfare. Thinking about emergency release in response to the coronavirus pandemic invites us to reconsider those policies in favor of less-harmful, non-carceral alternatives.
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 I doubt that this is true in many cases, but the assumption allows us to work from the best-case scenario. In cases where the assumption does not hold, then the instance of punishment under consideration was unjustified to start, and so will still be unjustified in light of current circumstances. Thus, if you accept my argument, cases will be unjustified under present circumstances whether or not they were justified at the outset.