On Friday March 27, 2020, PEN America’s Prison and Justice Writing Program intern Kate Cammell had a chance to speak with Fair and Just Prosecution’s Executive Director Miriam Krinsky and Research and Policy Associate Scarlet Neath about their recent statement—along with thirty other elected prosecutors—addressing the rights and needs of those in custody during the COVID-19 pandemic. 


KATE CAMMELL: As COVID-19 continues to spread across the nation, criminal justice advocates are calling on government officials and the Department of Corrections to prepare and provide adequate care for incarcerated communities. They’re also demanding the release of vulnerable populations among the United States’ 2.3 million incarcerated men, women and children. 

Miriam Krinsky is the Executive Director and Founder of Fair and Just Prosecution, a national group of prosecutors working towards a more equitable justice system by moving beyond incarceration-driven work. On March 17th, the organization released a statement “addressing the rights and needs of those in custody.” Krinsky, along with over thirty elected prosecutors, appealed to the public for immediate reform.

Since the statement’s release, COVID-19 has entered the prison systems. In New York City, the pandemic’s epicenter, The Appeal reported on March 26th that the infection rate within the city’s jails is 14.51 people per every thousand. That’s more than seven times higher than the rate of the city at large where about 2 per every 1,000 people are infected. 

Jails and prisons are becoming epicenters of the pandemic.

On Friday March 27, 2020, in my role as PEN America’s Prison and Justice Writing Program intern, I had a chance to speak with Miriam Krinsky, along with Fair and Just Prosecution’s Research and Policy Associate Scarlet Neath, about their work and COVID-19 in the context of America’s criminal justice system.

My name is Kate Cammell and this interview is part of Temperature Check: COVID-19 Behind Bars, a new rapid response series featuring original creative reportage by incarcerated writers, accompanied by podcast interviews with criminal justice reform experts on the pandemic’s impact in United States’ prisons. Follow the series online through our Works of Justice portal at pen.org/worksofjustice. 

Today we’ll hear from prosecutors—perhaps among the most unlikely of advocates—about the need for criminal justice reform during this pandemic crisis.

CAMMELL: Hi Miriam and Scarlet. Thanks so much for talking with us today.

So when people think of prosecutors, it’s not usually in the context of advocating for the release of incarcerated people. What motivated you and your colleagues at fair and just prosecution to craft a statement?

MIRIAM KRINSKY: So let me maybe—this is Miriam—launch in there with our thanks for your bringing voice on this important issue to those across our facilities in the United States who need to be heard and not forgotten. You know, I think in terms of our work, you know, we know that this situation is dire and we know that the clock is ticking, and that COVID-19 has already found its way into some facilities in the United States. And what we’re seeing is an exponential threat and spread within those facilities that dwarfs even the fast paced spread in our community. And so, we knew that we had to do something that, you know, simply watching what was going on was not an option. And we also know that the individuals that we work with as elected prosecutors in states and local jurisdictions around the nation have a bully pulpit as elected leaders, and also, given their role as prosecutors, are gatekeepers over the justice system. They have the ability to decide who comes in, what charges to file. And they also are tremendously impactful players in terms of working with other partners in the justice system to impact when people get out, what detention looks like and various other policies that could really be the ability to unlock the key to jail and prison doors for those who simply don’t need to be there can safely return to the community. And in doing so, cannot simply, themselves, find greater safety, but also help reduce the dense population in these facilities, and the threat to the larger community. Because we know that individuals come and go from these facilities, and if infected, will be bringing that infection back to their families, their loved ones and the broader community. So we really have this opportunity through the different thinking of the leaders we work with and their commitment to reducing the footprint of the justice system and ensuring that it’s operating in a fair and accountable and compassionate way. We think, to make a difference. And we felt that if we didn’t act and just watched what happened. As I indicated earlier around us, that we would be failing to abide by the obligation that we have.

CAMMELL: Right. So knowing what motivated you to craft this statement, it explains why confined populations are especially vulnerable to COVID-19. Can you talk about some of the particular threats the spread of the virus poses to people in spaces of incarceration?

SCARLET NEATH: Sure. This is Scarlet, and just to echo Miriam, thanks for bringing attention to this issue. So there’s a few factors that really concern us about a potential outbreak of COVID-19 in prisons and jails.

One is that these spaces are unhygienic places. People who are incarcerated are not able to take even basic precautions for themselves, such as carrying hand sanitizer because these items are still considered contraband. And we’ve heard descriptions and read stories from people inside prisons of how they share facilities such as water jugs or telephones with dozens or even hundreds of other people with no additional cleaning happening at this time.

But even if sanitation were to improve, prisons and jails are just set up in a way that forces people to be in constant close proximity, they’re warehoused in bunker style dorms or share small cells as a result of our overuse of incarceration for the past few decades.

So this has a result of making social distancing, or even just the isolation of sick individuals, not possible. So this creates a situation in which prisons and jails are set up to act as a tinder box for a potential spread of infection, which is concerning in and of itself. But even… additionally to this, they also hold people who are at risk for a more severe infection. People who are incarcerated are disproportionately elderly and have pre-existing health conditions. So just as one data point, 10 percent of the general population has asthma, whereas 20 percent of people in jail do. So just sicker individuals, and then also nationally, nearly 200,000 people over age 55 are incarcerated. And we all know that the risk that this disease poses to elderly folks.

And then, you know, despite the fact that prisons and jails are full of elderly people and people who have health vulnerabilities, they’re not equipped to provide even basic medical care, much less respond to an infectious disease. People who get sick in prisons are routinely transported outside to community based hospitals for treatment due to the lack of medical care. So when we talk about this being an issue that affects prisons, you know, there’s no separation from the community. And this is something we all need to be concerned about.

CAMMELL: Right. So with issues like close proximity and, you know, at-risk communities and this lack of adequate care, what are some of the key points of action that you want government officials to address?

KRINSKY: So let me maybe spell those out, because I think that they’re multifaceted, and really attempt to address the fact that the problem, the you know, the catastrophic situation that we’re seeing ourselves in currently, and that looks to get dramatically worse on the horizon is a multifaceted problem. But let me add one thing first to what Scarlet’s said earlier, which is, you know, I think we have to understand that in addition to all of the tremendous health concerns and risks that are inherent in a custodial setting, this is also a powder keg when it comes to the mental health and tremendous anxiety of those on the inside. And I know that the people you know, you’ve worked with, your organization, I’m sure, are seeing this, unfortunately, firsthand. If individuals are not able to have contact with their family, if the response from prisons and jails is to start putting people into lockdown or solitary confinement, given the stress that the entire nation is feeling right now, we are just a short time away from the potential for hunger strikes. As we’ve already seen in one immigration detention facility in New Jersey or for riots, as we saw tragically happening in Italy. So, you know, really, again, we just don’t have any time to lose. And it’s incumbent on everyone to act and engage now. So what does that look like? What are the key points of action? The first thing is let’s start to close the front door to the justice system. And again, that’s where prosecutors inherently have tremendous discretion and the ability to do the right thing, and to encourage their law enforcement partners to do the right thing.

We know that the United States is an international outlier when it comes to its rate of incarceration. And it’s over-criminalization of just about everything, including individuals who are simply struggling with poverty or mental illness or substance use disorder. So we need to start to tighten that front door. And as we’re seeing, and Scarlet will describe shortly, the elected prosecutors that we work with around the country are already doing it. They’ve been doing it before. They’re now doing it really on steroids, given the moment. We need to be bringing into the justice system only the people who pose a serious risk to their community, and otherwise it’s safer for our entire community to not be processing people at the rate that the U.S. has done throughout the last few decades. 

We also need to be looking at who we can get out and so for those who are in detention, and really, again, don’t pose a risk to the community, perhaps are being detained simply because they’re poor and they can’t afford the cash bail that’s been set. We need to be getting them out. We need to be looking at what other populations of individuals, whether pretrial or whether serving their sentence, can safely come home. Meaning, let’s take an aggressive look at who do we have in custody who is elderly, who is medically vulnerable, who is near the end of their sentence or who otherwise could return to the community safely.

And as has been done in New Jersey, where a thousand people have been identified to release, let’s start identifying those individuals who can come home and start to depopulate the dense living conditions that Scarlet described. 

And finally, we need to really be looking at the human rights and conditions and constitutional underpinnings of the rights of those who can’t come home, who remain in custody, giving them quality health care, looking at ways to isolate inhumane conditions—not in lock down—those who who showed some symptoms of the virus. Thinking about how facilities provide free soap and hand sanitizers, and sanitation, and cleaning facilities that haven’t had those sorts of things as a routine matter in the past. And thinking about that delicate balance between health and right. So in other words, how do we maintain access to family and loved ones, and how do we preserve the right to counsel for those individuals who are in facilities that now no longer are allowing family or lawyers to come and visit them? How do we ensure that even as our court systems are starting to close down and put jury trials and hearings into abeyance, that we’re still preserving the right to counsel. 

And finally, in addition to all of what I’ve described, we need to keep an attentive eye on what we’re doing, and what elected leaders and community leaders can be doing vis-a-vis the many individuals in immigration detention facilities, because that’s another population that’s too easy to forget and marginalize, but that is at grave risk as well.

CAMMELL: Yeah, hearing what officials on the policy side can do, I’m wondering now, what can people on the outside do to join in your advocacy efforts, and support the work that you guys are doing?

KRINSKY: So, you know, I think there are a couple things. You know, don’t let fear drive the narrative. You know, there are some who are resorting and continuing to resort to the same tough on crime, fear-driven narrative of the 80s and 90s. That just can’t be our starting point anymore. We have to recognize that public safety also includes healthy communities. And if we continue to perpetuate this over-incarceration epidemic, we’re going to allow the pandemic to take hold. And everyone in our community is going to find themselves at risk, not just those who are behind bars. 

I think, secondly, they can remember. And true work like your organization and others try to be, try to give a face to— so that they are remembering the human toll and stories and faces of those who are too easily forgotten, the individuals who are behind bars. And be informed and be compassionate by virtue of those human stories that aren’t getting told at the same rate of the daily news coverage of individuals in our larger community who are suffering from this violence.

I think finally, you know, we need to remember and again— everyone should bear this in mind and educate themselves—that these kinds of reforms, what Scarlet and I have been talking about is the will of our broader community. We know from a recent poll that was done by Data for Progress and Our Street and some other groups, that two thirds of voters agreed that elected officials should be considering measures to reduce overcrowding in our prisons and jails to better respond to this Covid-19 pandemic. So I would encourage people to look at that poll, and to realize that across ideologies, across the political spectrum, across the nation, there is support for taking these measures, and we shouldn’t let fear dissuade us from that pathway.

CAMMELL: Right. And for people who are really motivated by what you just said and suggested, how can people encourage their elected prosecutors to sign your statement?

KRINSKY: Well, the statement is on our website at FairandJustProsecution.org. We would welcome people in communities far and wide to circulate this statement, you know to their electeds, to their networks, through social media. Ask their elected prosecutors what they’re doing to limit the spread of this pandemic—this, you know, frightening virus—through our custodial and incarcerated settings. And realize, you know, we’re keeping this statement open. We welcome other people signing on. So we would encourage anyone and everyone to share this with others, and to ask them to join us in this pledge.

CAMMELL: I’d love to pivot to and just hear about what’s happened since you released the statement. What response and actions of these same facilities or government officials take across the nation?

NEATH: Yeah, absolutely. So since we’ve released this statement, a lot has happened. Miriam mentioned earlier an executive order authorizing the release of up to approximately a thousand people in New Jersey who are serving time for certain low level offenses or violate violations of probation in the county jail. This is probably the most sweeping and systemic action we’ve seen to date, and we’re really hoping to see more of the sort of big picture releases like those happening. But in addition to that, we’ve also seen prosecutors do a lot in their communities, collaboratively working with other stakeholders, such as public defenders and the judiciary. And they’re really working to identify and safely release people from local jails—especially those in pretrial detention who are incarcerated only due to an inability to pay bail. But also people who are held who, you know, don’t have much time left in their sentence or who are elderly or medically vulnerable, and work for them to no longer be detained. And they’re already achieving significant results. As one example, in North Carolina, Durham district attorney, Satana Deberry, was able to drive down her local jail population by about 10 percent in just a week. So we’re really heartened to see that kind of progress already happening, to address the population density problem that, you know, where we understand as a huge threat to this virus spreading. 

Another area of action is that prosecutors are reducing the flow of people into jail, as Miriam discussed earlier. Often they’re working with police to limit arrests, but they’re also changing their own practices as gatekeepers to stem the tide and change just sort of how the criminal justice system is operating right now. So as one example, in Baltimore, Maryland, Mosby’s office is declining to prosecute a certain number of low level offenses that are no threat to public safety, and would just result in this churn of people through the criminal justice system that we’d really like to avoid at this time. 

And lastly, some officials are also taking steps to ensure the safety and rights of those who have to remain in custody at this time. We’ve really been heartened to see that some prison and jail facilities are making calls and video conferencing free as they move to limit in-person visitation. But a lot, unfortunately, are not, and are resorting to the kind of lockdown settings that we’re looking to avoid. But some prosecutors we work with, such as Rachel Rolands in Suffolk County in Boston, are taking steps to work with defenders and community members in their jurisdictions to ensure that people in custody retain that meaningful connection, and access to their counsel, their lawyers, as well as for family members, that’s so critical not only to their rights, but for the rights of people who remain in the community and need access to their loved ones.

CAMMELL: Yeah, it’s so encouraging to hear all the advocacy that’s, you know, already happening. And looking ahead, what can the criminal justice community learn from this moment? 

KRINSKY: Well, you know, I hope not just the criminal justice community, but our entire community learns from this, is that they come to recognize that we have been an outlier in the world when it comes to our rate of incarceration, who we incarcerate, when we incarcerate and for how long we incarcerate. And I hope that we’ll be able to look back on a, you know, a very troubling and sad moment in time, but also one where perhaps there’s a wake up call, and people realize that as it pertains to our justice system, it doesn’t have to be this way, and that there is an alternative and a better way to do things. 

And hopefully people will look at the facts. And I think, you know, we all need to be driven by the data and the facts. And that will have a chance to look back and learn from this, and learn that there’s a new way to think about how long is long enough. And there’s a new way to recognize that people change, and that they age out of criminal activity, or even acts of violence that they may have engaged in in their 20s, that, you know, that person is not the 60 year old or the 70 year old, or even we’ve been hearing from loved ones, or the 80 year old who remain in custody, who are very different people who pose no risk to the community, and who really can and should come home. 

I hope we’ll learn from this, that everyone in our community matters, that we depend on the health of each other, and that our lives are inherently interconnected and that viruses, you know, and humanity knows no prison walls. And so how we treat those behind prison walls impacts all of us. It doesn’t just impact all of us in defining our moral compass. But as it comes to this, as it relates to this pandemic, how we treat those behind bars is going to impact, inherently, the health of our entire community. 

And I guess, you know, the final thing I hope people will learn from this—and again, this is about that vital importance of realizing the human faces of those who are decisions impact—is that everyone in custody is someone’s mother or father or son or daughter or loved one, and that they are at some point going to return to our community. And how we treat them is going to impact the kind of person they are, and their ability to reintegrate when they return to our communities. So, you know, I think that there will be some lessons learned. Many of them will come from the tragedy of the coming weeks and months. But hopefully there will also be some bright spots that we can lift up, and that will serve as learning opportunities.

CAMMELL: Absolutely. Miriam and Scarlet, thank you so, so much for talking with us today. I appreciate you both sharing your insight with us.

NEATH:  Thank you. 

KRINSKY: Thank you and happy to have done so.

For more information on the work that Miriam and Scarlet to advocate for incarcerated individuals, and how you can be involved, visit fairandjustprosecution.org. This has been a Temperature Check from PEN America.