Across the United States, politicians, public prosecutors, and local and federal courts have released thousands in the country’s jails and prisons in an effort to mitigate the rapid spread of coronavirus. Yet at the same time states and counties have begun arresting those breaching shelter-in-place orders and prohibiting their release on bail. Turkey’s government responded to the pandemic with legislative reform that granted temporary release to tens of thousands—even as police brought into custody hundreds more for “provocative” posts on social media regarding the pandemic. In Brazil, the National Justice Council has advised judges to expedite parole or sentence commutation for the elderly or vulnerable within the nation’s prisons, while state governors threaten imprisonment for those in breach of quarantine. These scenes repeat themselves the world over, pointing to the paradoxical position of prisons, jails, and policing within the Covid-19 pandemic. How is it that incarceration has emerged in the present as both a pathogenic hazard and as a public health solution?
We can start to answer this by recognizing the long-standing history of states turning to policing, prisons, and jails to manage public health (Gaber and Wright 2016). To cite but one example, the threats of arrest made by Brazilian politicians depend in part upon legislative reforms put in place as a response to the HIV epidemic. The country’s penal code recognizes a category of offenses known as “crimes against public health,” which includes the infringement of preventative health measures and the knowing transmission of the disease. But in the midst of growing casualties from HIV and AIDS, the penalty for this latter offense was significantly increased; it now carries a maximum sentence of fifteen years. This recourse to criminal law suggests that incarceration remains one of the primary tools by which states attempt to manage the risk of disease. In doing so, the criminalization of transmission also frames the spread of the epidemic in terms of civic duty and criminal responsibility, turning carriers into morally suspect figures.
What seems to tie incarceration to public health in these moments is the question of risk. Risk is a language and a logic that justifies who enters the criminal justice system, who leaves, and under what conditions (Williams 2017). The most commonly identified risk is that of the incarcerated person: their danger, the possibility of some future harm they might commit upon release. Within the context of my own fieldwork in two men’s prisons within Rio de Janeiro, this demand is ostensibly met through pre-trial hearings and a series of brief “psycho-social” evaluations. In other countries, and particularly in the United States, actuarial tools of risk assessment are wielded toward the same ends to determine, for example, who might be released on bail while awaiting trial, or who might qualify for parole.
Covid-19 has seen new forms of risk enter into this calculus of punishment and release. First, there is the risk of those breaking quarantine, one to be controlled and deterred by punitive justice. Second, there are the emerging categories of those demographically “at-risk” groups within prison particularly vulnerable to the worst effects of the virus. But there are also generalized risks of prison overcrowding, as well as those that are produced by the architectural forms of prisons and jails such as poor ventilation and dormitory-style cells. In the new language of quarantine, these factors essentially produce ready-made and durable “clusters” for the spread of the disease.
While legislators and courts struggle to find ways to respond to these risks, they also reinforce what apparently cannot be negotiated or conceded. Across the world, the selective release orders divide the prison population by drawing a line in the sand between those whose temporary release is deemed acceptable—generally those charged or sentenced with non-violent, non-serious, and non-sexual offenses—and those who must remain confined at all costs, even with the clear prospect of mass deaths within the world’s prisons. For the vast majority of those in prison who remain confined, the response to coronavirus is often increased isolation, as visitation is banned and solitary confinement becomes a tool for managing the disease’s spread. These responses, rather than calling into question the viability of these institutions, instead insist that some equilibrium is possible between the dangers of crime and those of disease.
Risk is a racial category. As Kaya Naomi Williams (2017, 38) argues, debates over crime and penal reform largely “presume the public as white, safety as a right that inheres in white bodies, and risk as a measure of violent threat that inheres timelessly in bodies that are black, brown, and poor.” This is perhaps why the many other communicable diseases which are endemic to the criminal justice system and those communities that are drawn into it have rarely received the same attention as coronavirus. For those incarcerated in Rio de Janeiro, 85 percent of whom are identified as black or brown (pardo), tuberculosis, scabies, HIV, and measles, as well as non-communicable illnesses such as hypertension and diabetes, are a ubiquitous presence in prison life. To seriously grapple not only with coronavirus but these carceral conditions as well requires us to challenge the predominant discourses in public health as much as criminal justice regarding what constitutes risk and safety, and for whom.
State reactions to the current pandemic demonstrate just how entrenched incarceration has become globally. Even as governments recognize some of the hazards of these institutions, they nevertheless turn to imprisonment as a knee-jerk response to problems of social order. And they do so precisely because incarceration has come to monopolize how many of us understand responsibility, safety, and justice. The task of thinking and enacting justice outside incarceration—that is, the project of prison abolition—has long been led by those from communities most exposed to the violence of the criminal justice system. But perhaps the present moment might underscore the urgency of such a task for the rest of us.
Gaber, Nadia, and Anthony Wright. 2016. “Protecting Urban Health and Safety: Balancing Care and Harm in the Era of Mass Incarceration.” Journal of Urban Health 93: 68–77.
Williams, Kaya Naomi. 2017. “Public, Safety, Risk.” Social Justice 44, no. 1: 36–61.