Incarceration, COVID-19, and Emergency Release: Reimagining How and When to Punish

ABSTRACT:The wide-ranging effects of the COVID-19 pandemic have amplified social inequalities and revealed vulnerabilities in public systems. These dual effects are especially salient in the context of criminal justice systems, and activists and policymakers have called for reconfiguring justice system practices in response. This paper discusses and defends one of these proposals: rapidly reducing the number of people currently incarcerated by releasing people from jails and prisons. Drawing on moral and political philosophy and criminal law theory, I provide a rigorous case for why it is morally unjustified to continue to incarcerate people as usual under present circumstances—this position is intuitive to many and already reflected in emergency policies in jurisdictions worldwide. The paper proceeds by way of two arguments. First, I argue that we ought to release people from jails and prisons to prevent meting out disproportionately severe punishments, which are unjustified on standard theories of punishment. The second argument appeals to what I call the public interest constraint on criminal law policy: defending the idea that we ought not make use of the instruments of the criminal law if the downstream consequences of doing so run contrary to public welfare and wellbeing or undermine the provision of substantive common goods. I argue that circumstances related to the coronavirus pandemic trigger the constraint. Though the idea that we ought to take broad social costs into account in designing criminal justice policy may seem intuitive, it has radical implications for thinking about decarceration and the ethics of justice system practices during the coronavirus pandemic and beyond. In the last part of the paper, I propose and discuss three concrete policies that work to mitigate some of the potential negative consequences of emergency release.