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Four Ways The Pandemic Made Us Rethink Our Criminal Legal System

By News Creatives Authors , in Leadership , at August 1, 2021

By Insha Rahman, Vice President, Advocacy and Partnerships, Vera Institute of Justice

For people of color, the parallels between this country’s criminal legal system and the pandemic are uncanny. Mass incarceration and COVID-19 have both had an outsize impact on Black and brown families, resulting in loss and suffering on an unimaginable scale. And both revealed that institutions tasked with keeping people safe and healthy woefully failed to do so.

But as we enter the second half of 2021, the fear that gripped this country during the early days of the COVID-19 pandemic is fading. So is the furor and intensity of last summer’s protests in the wake of George Floyd’s murder.

As a longtime criminal justice practitioner and as a person of color, I feel dismay as I watch the urgency dissipate. In an unprecedented way, the COVID-19 pandemic exposed the public health risks that overcrowded jails and prisons routinely pose. The pandemic also revealed the potential for criminal legal system reform, with some policymakers embracing measures that advocates have long urged, like cutting arrests and releasing people from jails and prisons to make facilities safer. At the height of the pandemic, the nation’s incarcerated population dropped below 2 million for the first time in decades.

But efforts to decarcerate did not go far enough, and jails and prisons continued to be epicenters of the virus. As of June 2021, more than 400,000 incarcerated people had contracted COVID-19 in prison and 2,700 incarcerated people and 200 prison staff had died.

Amidst the dismay, I still feel hopeful for the future. The fledgling steps local officials took showed that we can downsize the number of people behind bars and keep our communities safe.

Here are four changes policymakers implemented during the pandemic that should continue.

Stop policing traffic infractions 

 In some jurisdictions, police pulled over significantly fewer people, following guidance issued by law enforcement associations like the International Association of Chiefs of Police. In Texas, traffic stops were down 35 percent in 2020, and, in Connecticut, police gave out more than 34 percent fewer tickets.

These practices should continue. Most stops are for minor traffic violations, and some of those are pretextual: police stop drivers for minor infractions but then seek evidence of more serious crimes. Evidence shows that pretextual stops, fueled by racial bias, are one of the drivers of racial disparities in the criminal legal system: people of color are stopped, questioned, and searched at higher rates than white people. Eliminating unnecessary traffic stops is one step toward ending these harms.

Vacate outstanding fines and fees 

Some jurisdictions took positive steps to alleviate the heavy burden that court fines and fees impose on millions of people. In March 2020, Maine vacated all 12,420 outstanding warrants for unpaid fines and fees. Oregon passed a bill in June 2020 to end driver’s license suspensions for unpaid fines and fees. And in May 2021, Dane County, Wisconsin, eliminated fines and fees debt for people currently and formerly incarcerated, totaling $149,828—the county also eliminated a number of other judiciary fines and fees in December 2020, amounting to more than $1 million.

But not all the news was good. Some places increased fines and fees, and Colorado even intercepted stimulus checks for unpaid court debt.

The need to relieve such debt and to stop funding the criminal legal system through fines and fees persists even absent a pandemic. These practices harm people with low income and people experiencing poverty most. A 2018 study in Alabama found that more than 80 percent of people gave up things like food, rent, medical bills, car payments, and child support to pay down their court debt. People can also have their driver’s licenses suspended and even face jail time for their inability to pay.

Decline to prosecute low-level offenses

Baltimore stopped prosecuting drug possession, sex work, trespassing, and other low-level offenses, a move that the state’s attorney’s office made permanent in March of this year. The district attorney’s office in Brooklyn temporarily suspended prosecution of nonviolent offenses like driving without a license and shoplifting, and Chicago stopped prosecuting minor drug possession cases.

Although these measures were introduced to slow the spread of COVID-19, there are other reasons it makes sense to stop prosecuting people for low-level, nonviolent offenses (which make up about 80 percent of arrests): doing so promotes public safety and reduces the disproportionate and devastating harm the system inflicts on people of color and people who experience poverty, mental health conditions, and substance use.

The Suffolk County district attorney in Massachusetts implemented a decline-to-prosecute policy for several low-level offenses well before the pandemic. A groundbreaking study on the impact of that decision showed that declining to prosecute people for misdemeanors substantially reduced their probability of future involvement with the system. In other words, continuing to prosecute people for low-level crimes is a poor investment in public safety and can actually lead to more crime.

End the use of cash bail and wealth-based pretrial detention

On any given day, most of the nearly half a million people held pretrial in jail are there simply because they can’t afford bail. But a number of cities and states temporarily changed bail and pretrial detention policies during the pandemic. Jail populations in California dropped after the state issued an emergency rule that reduced bail to $0 for people accused of low-level crimes.

People detained pretrial have not been convicted of a crime—they are simply waiting for their day in court. But they are more likely to plead guilty, to be sentenced to jail or prison, and to have future contact with the system compared to their counterparts who were released or made bail. And pretrial detention is not making communities safer: even a few days in jail can be so destabilizing to a person’s life that it makes them more likely to be arrested again in the future.

The pandemic showed us the path ahead

It shouldn’t take a pandemic to expose the fissures in a system that in less dire times puts punishment before safety and well-being. It also shouldn’t take a pandemic to achieve the kind of decarceration and progress toward criminal legal reform we saw in the past year. The pandemic proved criminal justice policymakers can do things differently and—if we care about racial justice and Black and brown communities—we can’t afford to go back.

Nazish Dholakia, senior writer, and Aaron Stagoff-Belfort, program analyst, also contributed to this article.


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