More Must Be Done to Save Lives in Our Nation’s Prisons and Jails

Justice Reform Resources 04.29,20

Patrick Jones was not sentenced to die in prison.

But one month ago, Jones became the first person in federal prison to die from COVID-19. And it’s important to understand his story, because in many ways Jones’ experience personifies contemporary conversations about ending mandatory minimum sentences, about the failed war on drugs and mass incarceration, and about why our criminal legal system must be transformed.

Jones, who is African American, was sentenced to 27 years in 2007 under the old and gravely unjust crack/powder cocaine disparity. Congress changed the law with the Fair Sentencing Act of 2010, but many people didn’t benefit from the law retroactively. Jones was one of them.

More than 95 percent of federal criminal convictions are obtained through a plea bargain, but Jones didn’t take one. Instead, he went to trial and lost, and he was hit with a sentencing enhancement for distribution in a school zone — a charge that is too often used as a punishment when a defendant won’t take a plea.

In 2016, Jones applied for clemency under President Obama’s clemency initiative, but he was denied. He was also eligible for a sentence reduction under the First Step Act, legislation signed by President Trump in December 2018, but federal prosecutors opposed the sentence reduction — and on February 27, 2020, a judge agreed. He was denied again — and a month later he was dead.

Jones’ prior convictions were used as the basis for denying his application for a sentencing reduction, even though they took place decades ago and he had already served more than a decade for his drug offense. Despite his best intentions, there was no relief.

Last night, one month after Jones’ death, the Bureau of Prisons announced the death of  Andrea Circle Bear — the first woman to die in federal prison from the virus, and the 30th death overall. Circle Bear, a Native American woman who was just 30 years old, was recently sentenced to 26 months for a drug offense. She was placed on a ventilator on March 31. The following day, she delivered a baby via C-section — and four weeks later, she was dead. Her baby survived.

Their stories lay bare the gross inequities and problems with the war on drugs — and how after 40 years it continues to be used as a tool for social control of Black and Brown communities.

Since the war on drugs began in the 1980s, the United States has seen a 500 percent increase of people in our nation’s prisons and jails. In 1980, just over 40,000 people were incarcerated for a drug offense. Today, that number has catapulted to nearly half a million. And we know this hasn’t impacted communities equitably: According to the Sentencing Project, African Americans and Latinos comprise 29 percent of the U.S. population, but they account for 57 percent of the U.S. prison population. Imprisonment rates for these communities are much higher than for white adults — and the disparities exist for both the least and most serious offenses.

In the age of COVID-19, this enormous prison population is one we must be concerned about, especially given the enclosed nature of jails and prisons as well as the difficulties of maintaining proper hygiene inside facilities. Many jails are extremely overcrowded. Access to clean water and showers is limited. Hand sanitizer is often banned. Moreover, the jail population is more likely to be older and have chronic health conditions that render them particularly vulnerable to both infection and serious medical complications. All of these conditions effectively create a virus tinderbox that threatens not only incarcerated people, but also their families and communities at large. Unfortunately, not enough has been done to decrease prison and jail populations.

The Leadership Conference called on the National Governors Association, the U.S. Conference of Mayors, and the National Sheriffs’ Association to take immediate action to slow the spread of COVID-19 in prisons and jails. We urged President Trump to commute federal prison sentences for populations most vulnerable to coronavirus. We asked Attorney General Barr to decarcerate as many people as possible and to stop relying on the PATTERN risk assessment tool to identify people for home confinement because we are concerned that people of color will be disproportionately excluded for such release.

And we asked the Bureau of Prisons to include certain demographic information in its daily reporting of COVID-19 cases within federal facilities — because with 70 percent of the BOP population being Black and Latinx, we are concerned that people of color will bear the brunt of COVID-19 outbreaks in federal facilities. With recent reports indicating that COVID-19 is disproportionately impacting Black and Latinx people, elected officials have called for health agencies to collect and report demographic data on COVID-19. We need BOP to do the same.

Ultimately, we have to remember that there are so many more people like Patrick Jones who are incarcerated — whose names we do not know and who should be released immediately. After all, nearly half of the federal prison population is there for a drug offense. And thousands of people are serving life sentences for drug offenses. They are mothers, fathers, daughters, sons, sisters, brothers, aunts, uncles, and cousins. They are real people with families — and they deserve dignity and access to care and safety during this frightening time.

This administration must use the discretion it has under current law, including the CARES Act, to immediately release as many people as possible. Other officials across the country who have the authority must do the same.

In addition, as Congress works on its next legislative response to COVID-19, lawmakers must:

  • Mandate that the BOP release as many people as possible, especially the most vulnerable, from prisons and pre-trial detention;
  • Increase testing and provide adequate health care and communications for all people who remain in custody;
  • Incentivize states to drastically reduce their jail and prison populations and law enforcement to reduce arrests and end jail bookings;
  • Ensure that federal funding to law enforcement agencies prioritizes public education and awareness of the disproportionate impact of COVID-19 on communities of color, limits arrests and citations for failure to comply with public health ordinances, and requires the implementation of bias and anti-profiling policies and trainings;
  • Invest in mental health, community outreach, and social services to end the use of police in addressing public health crises; and,
  • Remove barriers to people with records accessing social safety net programs and services upon release.

And yes: We must transform the criminal legal system from top to bottom. Lives are at stake.