There are nearly half a million people incarcerated in the U.S. who have not been convicted of a crime but can’t afford to pay bail. They should be released to await their day in court, the American Civil Liberties Union said Thursday as the deadly coronavirus spreads throughout the country.
“Nobody should be locked up simply because they can’t afford freedom,” the ACLU said.
Jails and prisons are high-risk environments for a coronavirus outbreak. At a time when public health officials are urging people to self-quarantine, practice social distancing and wash their hands frequently, people who are incarcerated typically don’t have those options. They are forced to live in close quarters, and several prisoners have reported not having access to soap. Hand sanitizer is banned in most jails and prisons because it contains alcohol — even though New York state has prisoners producing the product at a wage of about 65 cents per hour for non-incarcerated people to use.
In China, the new coronavirus spread through five prisons, resulting in more than 500 cases. Iranian officials temporarily released 54,000 inmates in an attempt to contain the spread of the virus. Detention centers in the U.S. that mostly incarcerate those awaiting trial are at high risk of outbreaks because of the high volume of people entering and leaving the facility each day, David Patton, the executive director of the Federal Defenders of New York previously told HuffPost.
Pretrial detention contradicts the concept of being innocent until proved guilty, a foundation of the U.S. legal system. Money bail was introduced as a way to ensure that a person accused of wrongdoing would show up in court to face the charges against them. But it has created a two-tiered justice system: People who can afford to post bail await their court date in freedom and people who don’t have the money wait in jail.
It can take years for court cases to be resolved, and people detained pretrial are at risk of losing their jobs and homes. Conviction rates are higher among people who are detained ahead of the court date because people are incentivized to accept plea bargains to get out of jail, even if they did not do what they were accused of.
There was already a growing nationwide movement to reform pretrial detention and end money bail, even before the COVID-19 outbreak. But the onset of a global pandemic illuminated the cruelty and unjustness of the system.
“It was already unacceptable that people are locked up because they can’t afford to buy their freedom,” Scott Hechinger, a senior staff attorney at Brooklyn Defender Services, said in an interview. “On top of that, they are now being exposed at a far higher risk to a deadly virus and they are unable to do what everyone else outside of jail and prison is being told to do.”
The coronavirus outbreak, which has reached more than 1,600 confirmed cases in the U.S., creates an “opportunity to step back, assess and grapple with our overreliance on criminalization as the answer to all our societal ills,” Hechinger said. With the sudden focus on the public health risk posed by overcrowded jails and prisons, more people are starting to question whether it makes sense to imprison people who have not been convicted of a crime. That’s something public defenders and criminal justice advocates “have been screaming about for decades,” Hechinger continued.
New York ended cash bail for most misdemeanors and nonviolent felonies earlier this year — but the changes were not retroactive. In 2018, California became the first state to pass a law abolishing money bail. But before the legislation could go into effect, bail groups organized a referendum drive, forcing the issue on the November 2020 ballot. San Francisco District Attorney Chesa Boudin, a progressive prosecutor who entered office earlier this year, has said his office will no longer request payment as a condition for pretrial release.