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COVID-19 Shows Why We Need Misdemeanor Criminal Justice System Reform

Columns appearing on the service and this webpage represent the views of the authors, not of The University of Texas at Austin.

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The high incarceration rate in the United States has been an ongoing, partisan issue for decades. Our current criminal justice system has led to overcrowded prisons, each one a petri dish for COVID-19. This explosive combination of unnecessarily high incarceration rates and the prevalence of the coronavirus accelerates the need for us to fix our criminal justice system.

We can start this by restructuring our misdemeanor system.

Often overlooked, misdemeanors are critical to the U.S. criminal justice system, becoming a profit-making center with its court fees and fines. They make up 80% of American criminal dockets, and every year nearly 13 million misdemeanor charges put throngs of people into the U.S. criminal justice system. That’s over 26% of the daily jail population. This is even higher in certain states and counties — in New York, two-thirds of arrests are for misdemeanors.

Additionally, nearly 20 states report operating at more than 100% capacity, and the U.S. prison system ranks 110th most overcrowded in the world, with an occupancy level at almost 104%.

Research also shows that almost half of people in prison don’t present a public safety concern. They are incarcerated because of decades of strict drug laws, racial profiling, and our society’s punitive philosophy. Misdemeanor charges disproportionately impact low-income people and people of color. A national study found that the black arrest rate is at least twice as high as the white arrest rate for vandalism, drug possession, disorderly conduct, and the like.

Already, the coronavirus has begun spreading in many U.S. jails and prisons. This is completely unfair because there is no possible way for inmates to socially distance themselves and partake in the necessary hygiene to stay healthy.

Now, as COVID-19 ravages our nation, it accelerates our need to restructure what legal scholar Alexandra Natapoff has called the “misdemeanor machine” in the U.S.

The Wall Street Journal recently reported that thousands of inmates in the United States were being released in an attempt to prevent the coronavirus from spreading in crowded jails and prisons. With multiple inmates in a single cell and less-than-ideal sanitary conditions, many facilities are propagating grounds for the disease.

Now, nearly 20 states have sent low-level offenders, sick or elderly inmates home early, and the president is contemplating an executive order that would allow elderly nonviolent offenders to get out of federal prison. This is exactly what we need.

In some ways, the restructuring of the criminal justice system has begun. Now that the ravage of COVID-19 has caused prisons to release some of their inmates, we must rethink why we put them in there in the first place. As we’ve seen, research shows that almost half of people in prison don’t present a public safety concern. And, this contributes in serious ways to the overcriminalization of millions of people in our society.

We must make the misdemeanor system smaller, reducing the number of people who get arrested. This means raising the threshold for putting folks in jail — jaywalking, seriously? We must decrease the overall number of arrests and not pressure officers to arrest when it is unnecessary. I am not saying do away with the misdemeanor system. It serves an important purpose in our justice system. However, we must impose appropriate punishments that are not insanely disproportionate to the crimes.

It is sad that it takes a global pandemic to remind us yet again that we need to look at why we incarcerate so many people. Perhaps we’ve already tacitly acknowledged the need to restructure our criminal justice system with the release of inmates due to COVID-19. We must build on that now.

Annika Olson is the assistant director of policy research in the Institute for Urban Policy Research & Analysis at The University of Texas at Austin.

A version of this op-ed appeared in The Hill.

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