Out of sight, out of mind: Lessons from COVID-19 and Black Lives Matter for Criminal Justice Reform

Locked behind bars, forced into overcrowded rooms, and lacking basic sanitary equipment such as soap, tensions rise as inmates fear for their lives. Social distancing in prison is impossible. “We’re just waiting to die here,” are the words of one 61-year-old detainee. 

The vast majority of offenders commit low-level, non-violent crimes, and they are imprisoned for various reasons: deterrence, punishment, rehabilitation, and eventually, to be released – but not for a death sentence. However, their plight often goes unnoticed, and societal attitudes tend to be unsympathetic or actively vindictive. Whether that should be so is a debate for another time, but COVID-19 doesn’t discriminate. 

At the time of writing, over a hundred thousand inmates in the United States have been infected with COVID-19 and at least one thousand have died. Deaths from COVID-19 have also been reported in prisons across ASEAN, from the Philippines to India. Australia’s correctional facilities appear to be faring relatively better, but the country lacks a national database on COVID-19 cases and deaths in its prisons, and there is little information on testing rates. 

When COVID-19 spreads through prison populations, minorities are disproportionately impacted due to their overrepresentation in the criminal justice system. Black Lives Matter movements in Australia have attempted to raise awareness on how Aboriginal and Torres Strait Islanders are among the most incarcerated minority groups in the world, and theories as to why this is so range from over-policing to intergenerational trauma stemming from the legacy of colonialism. 

Whichever the case, the Australian Royal Commission into Aboriginal Deaths in Custody reported that, in order to protect Australia’s most marginalized communities, Indigenous people should only be locked up as a last resort and to especially divert young people away from prisons. Alternative sentencing options should be used instead. 

Next year marks the report’s 30th anniversary, but disappointingly little progress has been made. Politicians continue to enact ‘tough on crime’ policies that lock more offenders up for longer periods of time, filling prisons up to and over max capacity. 

The solution to overcrowding isn’t the construction of more prisons (like New South Wales’ new $700 million dollar facility) or even tougher laws. Being ‘tough on crime’ locks more people up for longer, and it may not be the most effective way to deter and reduce criminal behaviour  – studies in the United States and Australia found that almost half of all prisoners who are released end up back behind bars within just two years. Instead, a better way to tackle crime might be by targeting the root driving forces of criminal behaviour in areas such as education, work, and mental health

The popularity of ‘tough on crime’ laws, minority overrepresentation, inhumane treatment, overcrowding, and deaths in prison are not uniquely Australian issues. African Americans and Hispanics are overrepresented in United States’ prisons; minority Muslims, Dalits, and tribal peoples in India’s; and Indians and Malays in Singapore’s. The wider problem of prison overcrowding is harrowingly illustrated in Indonesia and Philippine where some prisons are at over four hundred and five hundred per cent capacity. 

Source: Unsplash, 2020.

These are all complex issues, but COVID-19 has highlighted one above the others – that of overcrowding. In response to the existential threat that the pandemic poses to entire prison populations, some of the countries listed above have begun releasing low-risk and non-violent offenders for home detention and electronic surveillance. 

While it may be worth pausing to ask whether the middle of a pandemic is the best time to do so, since alternatives to imprisonment exist, the question becomes whether those cohorts of offenders ought to have been incarcerated in the first place. Sending more people to prison creates a dangerous environment for both prisoners and prison officials, makes prisons more expensive to run, overloads medical and mental health facilities, and leads to human rights violations such as the failure to protect physical and mental wellbeing

In a post-COVID world, whether governments continue to re-examine their approach to dealing with prison overcrowding remains to be seen. Advocates have been campaigning on this issue for years, but with the embers of the Black Lives Movement still warm and social change in the air, there may yet be serendipity among all this tragedy if enough momentum can be gathered for long-term criminal justice reform.

Locking up only those who truly deserve incarceration won’t solve everything, but it is one important piece of the puzzle. 

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