The exponential spread of COVID-19 has made one thing clear: America is jailing way too many people in substandard, dangerous conditions that are highly susceptible to outbreaks of contagious illnesses.
Even when we are not in a state of pandemic, prisons and jails do little to promote public safety and the well-being of people who are incarcerated. They are detrimental to public health and human rights and disproportionately harm historically marginalized communities, such as Black people and those with mental illnesses who are incarcerated at higher rates. Inhumane conditions and treatment, including crowded and unsanitary facilities, extremely limited access to medical care, and the widespread use of solitary confinement, endanger the health, rights and well-being of incarcerated people and their communities.
The ACLU of Virginia has been working to reduce Virginia’s dependence on incarceration and the racial disparities in our criminal legal system. This General Assembly session, we worked with community partners, advocacy groups and Virginia lawmakers to push for much-needed change on four issues: marijuana reform, pretrial reform, ending solitary confinement, and felony larceny reform. In light of the COVID-19 outbreak, the need for these reforms is more evident than ever. Here’s why:
On any given night, Virginia jails hold more than 28,000 people – 46% of whom have not been convicted of any crime. That means that every day, approximately 12,880 people are sitting in squalid cells and in close proximity to many others, even though in the eye of the law, they are legally innocent. As COVID-19 is spreading at increasing rates through our communities and everyone is encouraged to practice “social distancing,” it’s immoral and unsafe to keep so many people incarcerated simply because they cannot afford to pay bail.
This year, as part of a pretrial reform coalition, we advocated for changes that included a right to legal counsel on first appearance and eliminating presumptions against bail to make it easier for people who have been charged with a misdemeanor to return home while awaiting trial. Unfortunately, Virginia lawmakers failed to pass these measures and send them to the Governor’s desk to be signed into law. Lawmakers even rejected a bill that would have brought transparency to the blacked-out pretrial system in Virginia, so that we can better understand the problem and come up with fact-based solutions to reduce the number of people who are unnecessarily and unjustly being jailed pretrial.
We will continue to seek to restore the presumption of innocence in our legal system. In reality, it would allow thousands of people to be safe, free, and have their day in court with dignity.
Our prison system doesn’t work. It hurts people and communities. It divides and dehumanizes us. If we can stand together to combat a virus that kills thousands of people, then we should be able to stand together to fight an unjust criminal legal system that impacts hundreds of thousands of our fellow Americans, generation after generation.
When someone who is incarcerated displays symptoms of COVID-19, that person should be taken care of and quarantined in line with expert, science-based recommendations. Yet, solitary confinement should never be used as a strategy to stop the spreading of COVID-19 in correctional facilities. As discussed in our 2018 report, solitary confinement is torture and can cause long-lasting, irreparable damage to anyone subjected to it. It is a violation of human rights in all cases and may not limit the transmission of COVID-19 because of the shared HVAC systems within solitary units. Prisons, jails and detention centers should never inflict torture of any
kind, including solitary confinement, under the pretext of responding to the pandemic.
In the legislature, we seek to stop prolonged solitary confinement for good in Virginia. While the Virginia Department of Corrections (VDOC) denies its use of solitary confinement, it estimated that a bill to end this cruel practice in all state prisons would cost $60 million. Due to the huge fiscal impact assigned by VDOC, our bill couldn’t move forward this session. However, along with a coalition of advocates and organizations, we were successful in pushing through a bill to gather data on how solitary is being used in Virginia local and regional jails and for what purpose. The goal is to get the Board of Corrections to adopt accreditation standards for jails that prohibit the use of solitary except in very unusual and limited circumstances.
Given the high risk of COVID-19 infection in prisons and jails and the postponement of most court activities, we should cease adding to the incarcerated population. That includes low-level offenses like simple marijuana possession, which is currently a misdemeanor.
This General Assembly session, Virginia lawmakers claimed victory for “decriminalizing” marijuana, but they still kept marijuana possession illegal, only with a lesser penalty. This means that Black people will continue to be disproportionately targeted and harassed by law enforcement officers with the pretext of “I smell marijuana.” The new law also includes a loophole that allows police to choose, regardless of the amount of marijuana involved, to arrest anyone they suspect might have an intent to distribute marijuana, even if it’s just to share with a friend.
This fell short of the equitable marijuana reform that we advocate for, which would not only reduce the number of people being funneled into prisons and jails each year, but also stop the harm of the War on Drugs on communities of color.
Felony larceny reform
Stealing an iPhone worth more than $500 shouldn’t be a felony that puts people in prisons for years and leaves them with countless collateral consequences after they’ve served their time. In addition to the heightened risk of contracting and dying from COVID-19 while incarcerated, people with felony convictions often face several barriers upon reentry, such as denial of employment, eviction and poverty — all of which add another layer of insecurity and uncertainty to people’s lives, especially during a global public health crisis.
Virginia lawmakers raised the felony larceny threshold from $500 to $1,000 this legislative session, but they should have taken a step further and raise it to $1,500 to catch up with many other states. On the other hand, we were able to pass a bill that repeals the “three strikes” petit larceny statute, which felonizes people on the third offense of petty theft, regardless of the circumstances and the amount stolen.
As we reflect on the small progresses we’ve made and the pushbacks we’ve encountered in the 2020 legislative session amidst the COVID-19 crisis, we feel even more resolute in our belief that Virginia’s overreliance on prisons and jails poses a threat not only to our civil rights and civil liberties, but also to public health and the common good.
The COVID-19 pandemic should be a wake-up call for all of us: Our prison system doesn’t work. It hurts people and communities. It divides and dehumanizes us. If we can stand together to combat a virus that kills thousands of people, then we should be able to stand together to fight an unjust criminal legal system that impacts hundreds of thousands of our fellow Americans, generation after generation.