The Pandemic Is Wreaking Havoc in America’s Prisons and Jails

Summary

The Political Scene | The New Yorker

Episode Summary: "The Pandemic Is Wreaking Havoc in America’s Prisons and Jails"

Date: May 4, 2020
Host: David Remnick
Featured Guests:

• Kai Wright (Host, United States of Anxiety, WNYC)
• Udi Ofer (Deputy National Political Director and Director, Justice Division, ACLU)
• Governor Phil Murphy (New Jersey)

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Overview

This episode takes a deep dive into the devastating impact of the COVID-19 pandemic on the U.S. prison and jail system. Through conversations with advocates and policymakers, David Remnick and Kai Wright explore how the virus has exposed longstanding issues within mass incarceration, the limited decarceration measures taken in response, and the challenges and politics of releasing inmates. Particular attention is paid to the health vulnerabilities of incarcerated populations, the responses by different states (including New Jersey’s approach), and the uncertain road ahead for both decarceration efforts and returning citizens.

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Key Discussion Points & Insights

1. The Threat of COVID-19 in Prisons and Jails

[02:31]

• The pandemic poses acute dangers inside correctional facilities, where social distancing is impractical.
• As of the episode’s recording, at least 150 documented deaths in prisons and jails, with numbers likely underestimated and growing.
• Facilities are “impossible to social distance in” (Kai Wright).

2. Limited Scope of Decarceration

[03:32]

• Over 2.3 million incarcerated in the U.S., with only about 38,000 released in response to the pandemic (less than 2%).
• Wright and Ofer both emphasize this scale is insufficient to make a significant difference in viral transmission.

3. Health Vulnerabilities in Correctional Populations

[04:52]

• According to Udi Ofer (ACLU), “about 40% of people in prison before COVID-19 have at least one chronic health condition... HIV is four to five times higher... people are older.”
• The most at-risk groups targeted by CDC are disproportionately represented behind bars.

4. State-Level Responses and Bipartisan Efforts

[06:12]

• Ofer highlights positive but limited actions in several states:
  • Colorado: 40% jail population reduction via executive orders.
  • Wisconsin, Kentucky, Washington, New Jersey: Each have initiated population reductions, sometimes through bipartisan cooperation.
• “I think everyone needs to do a lot more, but I also want to give credit where credit is due.” (Ofer, [06:12])

5. Hope—and Limits—for Decarceration Momentum

[08:20]

• Ofer is cautiously optimistic that public support for releases during COVID-19 could be a “tipping point” in challenging mass incarceration.
• Emphasis on recognizing incarcerated people as “our families, our neighbors, our human beings.”

6. The Challenge of Releasing ‘Violent Offenders’

[09:23]

• Most releases have excluded those convicted of violent crimes—many of whom are elderly and statistically less likely to reoffend.
• “The recidivism rate for elderly people is at the single digits, if not lower. People age out of crime.” (Ofer, [10:37])

7. Correctional Staff Concerns and Shifting Empathy

[11:04]

• Correctional officer unions have been quieter than expected, as staff are also at risk; Ofer notes developing increased empathy toward staff:
  • “Maybe we, even as the decarcerators, are developing more empathy for the people who not only live inside prisons and jails, but also work inside.” (Ofer, [12:52])

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New Jersey’s Approach: Governor Phil Murphy Speaks

8. Decision-Making, Criticisms, and Constraints

[13:57]

• Murphy aware of risks in correctional settings early on, but emphasizes caution and responsibility in release decisions:
  • Priority given to releasing by age, health, proximity to release/parole.
  • Ensuring released have “something to be released to… a place to go, a home, some sort of a safety net.” ([14:34])
• Responds to criticism of a slow process:
  • “I've got to do this responsibly... No state... has been more aggressive [than New Jersey], but we've also made sure that we've done it as right as we can.” ([16:00])

9. Tensions with Unions and Political Spectrum

[17:12]

• Murphy has not personally faced union pushback but acknowledges their concern for their own members’ health.
• Stresses that violent offenders will not be released:
  • “There's no scenario where we can let all prisoners out. I've got to draw the line between violent and nonviolent.” ([18:17])
• Emphasizes making decisions based on data and science, not politics.

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Reentry and Long-Term Implications

10. The Complexity of Reentry During COVID-19

[20:07]

• Many of the released go to home detention; the challenge is compounded by the fact that prisons have become de facto social service providers.
• Wright: “It may [make reentry] a much easier process when this is over as well.”

11. Potential Lasting Effects on the Criminal Justice System

[21:27]

• Wright is skeptical pandemic will shift America’s punitive views:
  • “Our faith… that punishment and incarceration is the way to deal with social ills—I don't see how this changes that in any way. That’s rooted in 150 years’ worth of racist ideas...”
• Concern that the crisis could further disenfranchise groups most affected by incarceration, especially in an election year.

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Notable Quotes and Memorable Moments

• Udi Ofer (ACLU), on public perception:
  • “We've always struggled to make the public and politicians realize that people who are living in jails and prisons are our families, our neighbors, our human beings.” ([08:34])
• Governor Phil Murphy, on release priorities:
  • “We've got to be very careful... not just the right people are being released, but that there's something for them to be released to.” ([14:42])
• Kai Wright, on the limits of reform:
  • “The only thing that would upend that is a change in political power. And indeed, I'm probably most concerned about the ways in which this crisis will decrease the political power of the communities that are most affected by mass incarceration.” ([21:55])

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Important Timestamps

| Segment | Timestamp | |------------------------------|---------------| | Acute dangers in prisons | [02:56] | | Decarceration numbers | [03:32] | | Chronic health in prisons | [04:52] | | State-level reforms | [06:12] | | Hope for lasting reform | [08:20] | | 'Violent' vs. 'nonviolent' | [09:23] | | Staff response | [11:04] | | Governor Murphy interview | [13:40] | | Release criteria | [14:34] | | Reentry challenges | [20:07] |

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Tone

The episode is sober, urgent, and deeply empathetic, reflecting the high stakes for incarcerated people, correctional staff, and wider communities in the face of the pandemic. While offering cautious hope about some reforms, the speakers keep a realist’s gaze on the complexity—and the enduring challenges—of changing criminal justice in America.

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For listeners:
This episode provides a layered, human look at the intersection of a public health crisis, criminal justice, and policy; a vital resource for understanding how the pandemic is exposing—and occasionally accelerating—needed change in the American prison system.

Transcript

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[David Remnick]

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[Kai Wright]

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I struggle most weeks to like get up, get myself up and ready and go to therapy or whatever. Like even like to open the laptop to talk to my therapist. Sometimes really difficult, but I do it because I realize how important it is for me to continue to feel good. I felt the best I felt in a long time through therapy.

[David Remnick]

Learn more about online [e-mail].

[Dorothy Wickenden]

I'm Dorothy Wickenden. On today's Politics and More podcast, a look at how the coronavirus pandemic is playing out inside our Nation's prison system. WNYC's Kai Wright speaks with Udi Ofer, the deputy National Political Director and Director of the Justice Division of the aclu. And David Remnick speaks with New Jersey Governor Phil Murphy, who recently signed an order to release certain at risk inmates from the state's prisons.

[David Remnick]

I'm joined now by Kai Wright, the host of the program the United States of Anxiety from wnyc. Kai, welcome back. It's great to see you over zoom, at least.

[Kai Wright]

Exactly. This is the closest we can get.

[David Remnick]

It was just three months ago, which now feels like five years ago, that you joined me for an episode that we devoted to the issue of mass incarceration and the consequences of that policy. Now we're watching as the coronavirus wreaks havoc on every facet of our lives, including inside our nation's prisons and jails. So, Kai, what does it mean for people who are behind bars still and people working in prisons as well?

[Kai Wright]

It means really quite acute danger, honestly. I saw a list this morning. There was something about like 150 people that have died that at least have been documented so far inside jails and prisons. The number is certainly growing. It's impossible to social distance in those environments now.

[David Remnick]

Some authorities and in some areas around the country have sent some people home or sent people out of prison to achieve just what you're describing. Some more social distance there, maybe not. People who were convicted of the most violent crimes. Is that not a step forward? Has it not achieved anything?

[Kai Wright]

Well, it has, but keep in mind, I mean, so There are about 2.3 million people incarcerated in the United States. That's a huge spectrum of folks ranging from people who are waiting for trial, who can't make bail, who are there on minor drug charges, on up through violent offenders. Right. When you think about that number, the most recent number I've seen of who's been released comes from the UCLA Law School, who's been tracking this. And they calculate there's about 38,000 people who've been released from the system. So out of that 2.3 million, that's less than 2%. And it's hard to see how that's going to make any real difference in terms of the ability to social distance or to reduce the transmission of the virus inside these facilities.

[David Remnick]

You recently talked with someone at the American Civil Liberties Union who knows about these issues. Who is that?

[Kai Wright]

Udi Ofer is a head of the ACLU's justice division. So that means he heads up their criminal justice reform efforts overall. And he's been kind of spearheading the organization's effort to go literally county by county, state by state, and to the federal government and try to urge them to stop arresting so many people. And two governors. Use all the power that you have to let as many people out as you can, particularly the people who we know to be most vulnerable.

[Udi Ofer]

We're in a real crisis situation in jails and prisons. And even more so than the crisis, we're all Facing across the nation, about 40% of people in prison before COVID 19 have at least one chronic health condition, so such as asthma or diabetes.

[David Remnick]

Right.

[Udi Ofer]

HIV is four to five times higher among people in prison than in the general population. People in our nation's prisons are older. So the communities that the CDC has told us are most vulnerable to COVID 19 are exactly the communities that are housed in our nation's jails and prisons.

[Kai Wright]

So you guys have reached out to 25 states, right. 25 governors, if I'm correct. What is it you were requesting and who's sort of been the most effective action so far?

[Udi Ofer]

Yeah, we're asking governors to tell their prosecutors, their police, their sheriffs to stop bringing people into the system in the first place. Stop making custodial arrests for low level offenses. If you have to make an arrest, give someone a ticket instead of taking them to central booking. That may sound like not a big deal, but right now it literally is a life and death situation.

[Kai Wright]

And are there places that you see that are doing that? They're taking this up? Who's doing a good job?

[Udi Ofer]

Yeah. So look, I want to be careful here because I think everyone needs to do a lot more, but I also want to give credit where credit is due. So look, in Colorado, for example, Governor Polis has issued a couple of executive orders. We have seen about a 40% reduction in the state's jail population. And, you know, and sheriffs there and police officers are starting to, you know, get people, making sure the jail population is going down. In Wisconsin, we saw the secretary there begin releasing people on what's known as supervision holds. In Kentucky, we've seen a bipartisan coalition lead to an executive order that has led to about 800 fewer people in prison. And the county jails had been reduced by about 28%. Washington state, Governor Inslee issued an executive order that got about 950 people out. New Jersey has been in the forefront in many ways, both through the Supreme Court and Governor Murphy issuing an executive order. So we are seeing examples we could point to. And I'm proud to say that some of these are even in Republican administrations, which I think is very powerful statement. But we need.

[Kai Wright]

Well, I was trying to track that math as you were speaking. I was trying to say, okay, which ones of these are Democrats or Republicans? So I would assume that it would be largely Democrats. But you are seeing Republicans who are stepping forward with this too.

[Phil Murphy]

Yeah.

[Udi Ofer]

In Kentucky, the ACLU is working with Republican allies to get people out of prisons and jails. So look, I mean, the way I always talk about the movement to end mass incarceration is that in many ways, it's an island of political agreement in a sea of bickering. Right. We've actually seen a lot of successes over the past couple of years in red states, in blue states to begin tackling mass incarceration. But everything has become a lot more urgent now during this COVID 19 crisis.

[Kai Wright]

I wonder how this changes that in the long term in terms of either making it more or less likely that that movement will continue. I've thought about that. What do you think?

[Udi Ofer]

Yeah, look, I don't want to find a glitch. I'm trying to be careful and not find anything positive about this horrible pandemic we're all living through, because there's nothing good about it. At the same time, some mornings I wake up feeling a bit more hopeful. Where, look, we've always struggled to make the public and politicians realize that people who are living in jails and prisons are our families, our neighbors, our human beings. And seeing the fact that more than 16,000 people have been released from prisons and jails by ACLU count since the pandemic began, and that the public is being supportive of this gives me that ray of hope that maybe this is the tipping point that we've all been waiting for in the mass incarceration space.

[Kai Wright]

And what about violent offenders? I mean, this is always the third rail of this conversation. I imagine those are the folks who are not being released at this time. What's gonna happen there?

[Udi Ofer]

Yeah, it is true that in the vast majority of releases, it's mostly people who are held for drug or property offenses. So what are called nonviolent offenses. And that's unfortunate, particularly when you're talking about prisons. Right. Look, one of the phenomenons of mass incarceration is that we have seen a 300% spike over the past 20 years of the number of people age 55 or older who are in prison. So the reason people are held for these long sentences a lot of times are because they were incarcerated for violent offenses that they engaged in when they were in their teens or in their 20s. Yet here we are 20, 30 years later, and they're still being incarcerated for these mistakes. So I'm hoping that in the coming weeks, we're going to see an increase of the number of elderly people who are being released, including people who are incarcerated for offenses involving violence. And to any listeners out there who are worried about what does that mean for crime America? You know, the recidivism rate for elderly People is at the single digits, if not lower. People age out of crime. That is a fact that has been documented through many studies. It makes no public safety sense to hold someone when they're in their 50s, 60s or older if the reason is public safety.

[Kai Wright]

What about, like, corrections staff and law enforcement unions? These are some of the folks who have traditionally been opposed to decarceration campaigns. And this outbreak is, I would imagine, not great news for prison guards either. So how have they responded to this moment and this effort?

[Udi Ofer]

Yeah, so this is going to be a bit of a weird answer, but so far they haven't been vocal as they would otherwise about all of the releases that are happening. So in many ways their non response, I think, speaks volumes. Everyone's life is at risk. You know, there are more than 37,000 federal corrections employees, and I know that they're frustrated with the Trump administration's lack of an appropriate response. And I think we're gonna start hearing more from federal correctional unions and from other spaces demanding more from the Trump administration.

[Kai Wright]

I wonder if it will have any impact on how the decarceration movement operates out of this, if there's something new that will come out of it.

[Udi Ofer]

I can't answer that fully now, but one of the things that I'm noticing on my team and this is, you know, it's a bit of an admission, right? We normally do not talk about the health of corrections officers. We're focused on people who are incarcerated in jails and prisons. We at the ACLU were about to release what we're calling a memorial for people who have died because of COVID 19 in prisons and jails. The first version of that was only going to include incarcerated people. But then as we were kind of talking about it, we were like, you know what? We have to include corrections officers. They're dying, they're risking their families. So we're going to add that, and I don't think we would have done that before COVID 19. So maybe we, even as the decarcerators, are developing more empathy for the people who not only live inside prisons and jails, but also work inside prisons and jails.

[David Remnick]

That's Udi Ofer of the American Civil Liberties Union talking with Kai Wright, the host of WNYC's the United States of Anxiety. And they spoke in April. We should note that some of the numbers they mentioned may have already changed. Udi Ofer singled out a number of states that are trying to reduce their prison populations in response to the coronavirus. New Jersey is among them. The state has the second highest rate of infections in the country. County jails have temporarily released more than 800 people. And new Jersey's governor, Phil Murphy, signed an executive order to begin releasing certain at risk inmates in the state prison system. I spoke with Governor Murphy about a week ago. Yeah. How are you holding up?

[Phil Murphy]

I'm holding up. I mean, we're going to, you know, today is going to be another day with several hundred more fatalities. We're going to announce in a couple of hours. And you know, we think we're, we're in a meaningfully better place than we may have been a week to two ago. But we're not out of the woods without any questions.

[David Remnick]

Certainly not. Certainly not. Governor, I know you've been inundated with information and so many challenges related to coronavirus for months now, but I have to ask, when did you first become aware that prisons were going to become a major hotspot for transmission and that the prison population was at particular risk.

[Phil Murphy]

Early on? I can't give you a specific date, but we knew that we're not going to crack the back of this virus if we only bring some of us along. We got to bring everybody along.

[David Remnick]

What is the prison population and how many people are you planning to let out?

[Phil Murphy]

The population at the state level, I believe is about 19,000, and that's down over time from 30,000 not that long ago. I don't have a county jail number specifically for you, but obviously there's a different jurisdiction there and the number in terms of the folks who will be let out is yet to be determined. And so we're right now going through batches of populations, and the batches are defined by things like age, underlying conditions. Another one is within X days of maxing out a sentence. Another batch is folks within a certain amount of time to parole. Yet another batch is folks who had been up for parole within the past year and had been denied for whatever reason. So we're going through that process batch by batch, and as you can imagine, you want to get that right. Not just the right people are being released, but that there's something for them to be released to just to make sure folks have a place to go, a home, some sort of a safety net, that we're not just throwing people out in the streets and we got to be very careful in terms of those decisions.

[David Remnick]

How do you respond to the critics who have said that this process in New Jersey hasn't moved fast enough and that these people point to other states which have released many more inmates how do you respond to that?

[Phil Murphy]

I've got to do this responsibly, is my answer. And we take this very seriously. You know, we are. If you look at steps taken by states in America, and again, this is a general comment, but it does include corrections. I don't know that any state, when you add up all the steps we've taken in America, has been more aggressive. But we've also made sure that we've done it as right as we can. I'll give you an example. When we closed schools, we made each district come up with their emergency action plan. And unless we blessed it, they we did not allow them to shut down. Reasons mostly because of lack of access for too many of our kids to a device. You had to have an explicit paper plan for remote learning. Another reason was access to a hot meal. Whereas for schools, it might have been their only opportunity of the day for too many kids in our state to get a reliable meal. So we took an extra couple of days to make sure we got that right. And I want to make sure we get any major shift in our population in our corrections community also, as right as we can.

[David Remnick]

Well, how have you responded to police and corrections officers unions that have opposed releases and other reforms? Have they come to you with their concerns and tried to block anything?

[Phil Murphy]

I have not gotten incomings personally. It's not to say that my team has not. They also are worried about their own populations. You know, you look at the corrections officers, we've lost some healthcare workers who work in corrections facilities, we've lost some. You know, they're focused not just on what we're doing with the prison population. They're focused on their own ranks, as they should be. And understandably, Governor, give me the political.

[David Remnick]

Dynamics of dealing with the prison population. In particular, the people on one end of the political spectrum saying, you can't let anybody out. And then there have been voices, particularly on the left, who say, well, in this situation, this incredibly horrific emergency situation, all prisoners should be let out because of the circumstances of prisons themselves, which are where everybody's up against each other and things can spread like wildfire.

[Phil Murphy]

Yep. So I'd say a couple of things. Number one, there's no scenario where we can let all prisoners out. I've got to draw the line between violent and nonviolent. And that's a line that we'll adhere to for the folks, even in the violent offender category. I hope sooner than later we'll be able to achieve the social distancing and the sort of basics that may be more difficult or may have been more difficult without any of these releases. And secondly, I haven't really spent any time on the politics in all the steps we've taken. We're trying to make the call as best we can based on the facts, based on the data, based on the science.

[David Remnick]

But are you, you have to say to yourself in the position that you're in uniquely, I'm willing to put certain people at much higher risk, that is leave them in prison because of their past record. Is that what you're saying? That violent offenders, they're going to just be at higher risk because I can't let them out?

[Phil Murphy]

I think you can say both of those things that you know what, I'm sorry but the violent offenders are going to have to stay in the system, but we're going to be able to much more appropriately and proactively care for their well being while they're in the system.

[David Remnick]

Governor Murphy, I wish you the best and thank you so much.

[Phil Murphy]

Thanks for being on David.

[David Remnick]

Phil Murphy, Governor of New Jersey we spoke about a week ago. I'm joined today by Kai Wright, who's The host of WNYC's program the United States of Anxiety. So Kai, for those who are being released, what happens to them after they get out of prison? They're re entering society at an incredibly stressful, complicated moment.

[Kai Wright]

Yeah, it's hard to say quite honestly. I mean for a number of people they're being released into home detention, right. So they're being sent either with ankle bracelets or back into their homes to quarantine with their families. It raises an enormous number of questions. I mean one of the things that we have to remember is that part of what's happened in mass incarceration is we have turned prisons into the one place where people get a number of social services that they need, from alcohol and drug treatment to mental health treatment in many cases to forms of healthcare. And so there are a number of things that have to be done in folks lives because of the way we've organized society. And I think it's gonna be jurisdiction by jurisdiction, a challenge to figure out how to do this. I think the hopeful note is that if they do that, if we're able to figure out how to do reentry correctly in the course of this in those places, it may that a much easier process when this is over as well.

[David Remnick]

Well, I was gonna ask do you think that this terrible experience which is affecting so much of society in so many ways might have some kind of influence on the criminal justice system when we are past COVID 19.

[Kai Wright]

I think it depends on what you mean. So I think in the sense of that there will be counties and states in particular who will have made the political and economic investment in decarceration of some sort. And I think that you will see a permanent downtick in some of those places in terms of the number of people who are held in these facilities. But on a broader level, in terms of changing our faith, which is really the only way you can describe it, our faith in the idea that punishment and incarceration is the way to deal with social ills, I don't see how this changes that in any way. I mean, that's rooted in 150 years worth of racist ideas about the ways in which black and brown people are a threat to society. And this crisis won't upend that. The only thing that would upend that is a change in political power. And indeed, I'm probably most concerned about the ways in which this crisis will decrease the political power of the communities that are most affected by mass incarceration.

[David Remnick]

Why do you say that?

[Kai Wright]

Well, because we are in the middle of an election year, and the people who are most affected by this are the people who are most easily disenfranchised. And I think one of the problems that we are going to be staring down as this crisis unfolds is how does democracy continue to function?

[David Remnick]

Kai, thanks so much.

[Kai Wright]

Thank you.

[David Remnick]

Kai Wright hosts the United States of Anxiety from wnyc. Now, we've been covering this issue for quite a while, and we're going to keep following it as prisons respond to the pandemic. Some weeks from now, you'll hear what it's like for an inmate being released into a world that's been transformed by the crisis.

[Phil Murphy]

Foreign.

[Katie Drummond]

I'm Katie Drummond. I'm Wired's Global Editorial Director.

[Udi Ofer]

I'm Michael Colori, Wired's Director of Consumer Tech and Culture.

[Katie Drummond]

And I'm Lauren Good.

[Mint Mobile Spokesperson]

I'm a senior correspondent at Wired. And our show Uncanny Valley is all about the people, power and influence of Silicon Valley.

[Katie Drummond]

At Wired, we're constantly reporting on how technology is changing every aspect of our lives. So each week on the show, we get together to talk about one of the biggest stories in tech.

[Udi Ofer]

Right? So whether we're talking about privacy, AI, social media, or a major tech figure, we will always explain the Silicon Valley forces behind these stories and how they affect you.

[Katie Drummond]

Make sure you're following Uncanny Valley in your podcast app of choice so you don't miss an episode.

[Kai Wright]

From PRX.