From working remotely to virtual court proceedings, one silver lining of the pandemic is that it showed that the impossible always was possible. Even the approaches to mass incarceration did not escape the reimagination that occurred because of the pandemic.
Kelly Lyn Mitchell, executive director of the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School, investigated shifting attitudes toward mass incarceration in research titled, “Examining Prison Releases and Response to COVID: Lessons Learned for Reducing the Effects of Mass Incarceration.” Not only did this research show shifts in policies nationwide, but it also presented opportunities for systemic changes post-pandemic.
Mitchell explains that the Institute was already engaged in projects looking at what sorts of factors went into decisions to release incarcerated people from prison. As they were doing that work, the pandemic hit.
“It occurred to us that the pandemic, as people were starting to be released from prison, was really demonstrating in real time the power of that back-end release discretion. We wanted to do more to understand how it was used in that setting,” Mitchell said in an interview.
The investigators estimated that a total of 80,658 people were released from prisons in 35 jurisdictions under COVID-related policies. This equates to about 5.5% of the total state and federal prison population in 2019.
The main factors influencing release were the type of crime committed and how much time was served.
“When you look at the types of people who ended up being eligible for early release during the pandemic, states really focused on people who committed nonviolent offenses — or whatever is labeled as nonviolent offenses in their state — and people who were really close to being released already,” Mitchell said. “States were focusing on ‘Who are the people that we think are the least risk to public safety?’ And not only that, but ‘Who are the people that the public would perceive as being the least risk to public safety?’”
While most people in authority did not mention their concern about public attitudes, the concern seemed to motivate decisions across the country.
“There were real indications that the authorities who were in charge of making these decisions about these releases were concerned not only about actual risk to public safety but also the perception of risk to public safety,” Mitchell said. “So, they seemed to hone in on these folks who did nonviolent crimes and had very little time left because they were going to be released anyway.”
Besides just releasing incarcerated people, prisons addressed crowding during COVID by curtailing admissions.
“In a lot of states, one of the ways that prisons kept their populations down was to refuse admissions.” Mitchell said. “Some stopped allowing admissions for anybody—that happened in Alabama. Other states refused admission for specific purposes. Technical violations of parole and probation tended to fall into that category.
Examples of technical violations are things like not remaining in contact with a parole officer. “They are violations of the conditions of supervision, but they are not new crimes,” Mitchell said. “States needed to take a different approach when looking at those violations versus commission of a new crime. They tended to respond by saying that ‘the risk to going into prison, any kind of confinement … is pretty high during this period of COVID—just the health risk to the individual.’ So, they asked whether the offense of violating probation or parole worth that risk. In a lot of cases, in a lot of states, the answer was ‘no.’ Instead, they found other ways to respond to those violations—which they have always had the ability to do.”
Some of those ways, Mitchell notes, are things like putting an individual on electronic monitoring or increasing the number of times the individual needs to check in with a parole officer.
These changes have made an impact, even locally.
“There are places that are looking at that practice now and saying, ‘Wow, do we need to use confinement at all in these instances?’” Mitchell said.
Ramsey County is a county that has adopted this view, Mitchell noted. “They actually did radically reduce the amount of confinement that they used during the pandemic. … They are reconsidering when confinement needs to be the response to these types of situations.”
For Mitchell, the most shocking part of the study was understanding how much power states do have to release from prison. Even in determinate states such as Minnesota — where the law establishes how much time a person must serve in prison — people were released.
“If a state wanted to make a release, they usually had a way to do it,” Mitchell said. “Now, what that tells me about mass incarceration is that we do have power in the back end. If we saw mass incarceration as an emergency, as something to be dealt with, we could. The question is whether we have the political will to do it.”
Mitchell noted that it is unclear how the shifts in practices during the pandemic will affect mass incarceration nationally, maintaining that outside pressure — from executive orders or litigation — may be necessary to encourage back-end releases. Even still, jurisdictions during the pandemic were fairly conservative in who they released. Until jurisdictions are confident that risk to public safety — and perceptions of risk — are low, Mitchell is unsure that jurisdictions will take the lessons from the pandemic and use them to shrink the large population of incarcerated Americans.