American Life Is Shrinking Under Coronavirus. The Criminal-Justice System Is Not.

New York Governor Andrew Cuomo (left) and NYC Mayor Bill de Blasio (right).
New York governor Andrew Cuomo (left) and NYC mayor Bill de Blasio (right). Photo: David Dee Delgado/Getty Images

For many Americans, the novel coronavirus has prompted unprecedented self-restraint. Long-standing travel plans have been canceled. Concert tickets have been forfeited. Office work has moved online, and social gatherings exchanged for long, lonely days and nights at home. Once-bustling streets are noticeably quieter. Rare trips to the grocery store are undertaken with the knowledge that scarcity might guide shopping decisions more than recipe plans. Expansive social worlds have folded inward. And most of it has happened in the hope that it might avert catastrophe — that through self-isolation, people will become less useful as vectors for infection.

But in many cases, the criminal-legal system has taken the opposite approach. Where much of American life is marked now by restraint and reduction, some law enforcers see the virus as an opportunity to extend their reach. The Department of Justice has asked Congress to let them empower chief judges to detain people indefinitely without trial during emergencies, Politico reports. The new power would apply “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.” One effect of this change would be to weaken habeas corpus — the constitutional right of an arrestee to see a judge and seek release. “So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over,” Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, told Politico. “I find it absolutely terrifying.”

In New York on Monday, police officers began patrolling the five boroughs more aggressively, breaking up gatherings of more than ten people and issuing fines to scofflaws. The measure is meant to bolster official calls to practice social distancing voluntarily with legal pressure. It’s also another means of subjecting them to the criminal-legal system. For poor people especially, the potential costs of such a decision are well known. Unpaid fines regularly beget court appearances which can beget jail time, all of which supply bodies for a system so stuffed that it’s become a public-health danger. These new measures come while Governor Andrew Cuomo hedges on granting prisoners clemency to mitigate risk. “It’s something we’re looking at,” he said on Monday, in his first public hint that clemency was even being considered as a response to the coronavirus.

The DOJ request will have a hard time getting past the Democrat-controlled House of Representatives. But the changes in New York are already in effect, and mark an incongruous response to one of the pandemic’s budding sub-crises. Advocates have long warned that packed jails and prisons are ideal vessels for spreading illness. The last thing the criminal-legal system needs today is greater flexibility with which to subject more people to it. Yet creating new pretenses under which to do so is currently being prioritized — even as the same officials leading the charge refuse to use their most effective decarceration tools to slow the disaster at their doorstep. Cuomo has hundreds of clemency petitions sitting on his desk; he could free every sick and elderly prisoner in New York with the stroke of a pen. Instead, he’s using prison labor to manufacture hand sanitizer for government workers, while Mayor Bill de Blasio is busy facilitating potentially volatile confrontations between residents and police.

There’s no easy way to enforce social distancing, and doling out fines might seem like a reasonable solution. But it primarily stands to exacerbate what’s already made this situation so costly for the most vulnerable New Yorkers. The criminal-legal system’s day-to-day operations are begging for the kind of disruption that coronavirus has occasioned — a chance to decelerate a carceral machine whose atrocities were apparent long before the first Rikers Island prisoner tested positive. Officials in New York, the epicenter of America’s outbreak, have thus far failed to respond with the necessary urgency. The Intercept reports that de Blasio is slow-walking efforts to free people imprisoned for minor crimes and consulting unnecessarily with New York police about who should be let go. Cuomo has failed a similar no-brainer, leaving the 666 prisoners locked in city jails for technical parole violations — like missing a curfew or failing to notify their parole officer of an address change — to languish as the virus runs its course. As of now, at least 38 prisoners and employees at Rikers and its surrounding complexes have tested positive for COVID-19, according to the Guardian. That’s up from one prisoner and one employee last Wednesday. It’s almost certainly an undercount.

There will undoubtedly be more examples in the coming weeks and months of officials trying to expand law enforcement under the pretense of stopping the coronavirus. These may take the form of greater detention powers or a broadening surveillance apparatus. They may even seem like necessary evils. But they’re being proffered at a point when much faster and more effective means of stemming the virus’s spread are at officials’ fingertips, and yet remain, with few exceptions, dramatically underused. America’s governments simply don’t have to keep cycling more and more people through courts and jails and prisons to keep residents safe. Quite the opposite, in a pandemic. Hopefully it doesn’t take a public-health catastrophe to make that clear.

The Criminal-Justice System Is Growing in Coronavirus Crisis