COVID-19 presents an enormous risk to those in carceral facilities and their surrounding communities. Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. These infections and deaths were largely preventable, as we demonstrated in April by working with academic partners to build an epidemiological model that illustrated the deadly threat of COVID-19 in jails. In response to this crisis — and in many localities, only after substantial public pressure and threats of litigation — some governors, sheriffs, and judges made the decision to shift detention policies to prioritize protecting the lives of those who live and work in jails and prisons. Some states and localities reduced low-level arrests, or set bail to $0 for certain charges. Others released a small subset of incarcerated people who were nearing the end of their term or were most vulnerable to the disease — sometimes under court order. 

While no jail system has gone far enough, county jails and state prison systems across the U.S. have taken differing levels of action, allowing for a unique opportunity to explore the relationship between decarceration and crime in the community. To explore this, the ACLU’s Analytics team looked for data on jail population and crime in locations with the largest jail and overall populations. We were able to find reported data on both from 29 localities. (Crime data more recent than May was not readily available during analysis.) 

Nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April. Over this time period, we found that the reduction in jail population was functionally unrelated to crime trends in the following months. In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population.

Note: Police data is often dynamic, and constantly updated based on new reports. Reported incidents may have changed since time of analysis (early July, 2020).

We found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years. The release of incarcerated people from jails has saved lives both in jails and in the community, all while monthly crime trends were within or below average ranges in every city. 

The team’s findings were in line with recent reports that documented certain types of crime have gone down during the COVID-19 pandemic, which many attribute to stay-at-home orders and decreased overall activity. City-level crime trends are complex and influenced by many factors, including temperature, with crime rates typically rising in the summer months. The analysis confirmed that the amount by which a county changed its jail population wasn’t correlated with the amount of change in crime. 

This confirmation comes at a time when reducing jail populations is urgently necessary. The epidemiological model the ACLU developed in partnership with academics in April illustrated the profound risk COVID-19 presents to people in carceral facilities and their surrounding communities. The model found that swift action to reduce jail populations could save lives, but inaction could lead to an estimated 100,000 deaths in jails and the surrounding communities. Since then, COVID-19 has continued to spread rampantly through jails, prisons, and immigration detention centers — more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. Further research has confirmed what we feared: Cycling through a jail is one of the largest risk factors for COVID-19 transmission. For Black and Brown people already disproportionately harmed by the criminal justice system, this system only exacerbates COVID-19’s unequal impact. 

Arresting fewer people and releasing people from jail during a pandemic, as the 29 localities highlighted here have done, has undoubtedly saved lives in jails and in surrounding communities. What’s more, crime was lower this spring in nearly every location, and the amount of decarceration or incarceration appears uncorrelated with crime patterns. No state has gone far enough, and all should continue to reduce their jail, prison, and detention center populations, particularly for those who are most vulnerable. The potentially fatal threat of COVID-19 in jails and prisons, and the risk of transmission between jail staff and the surrounding populations, should be reason enough to release as many people as possible. 

As states struggle to return to “normal,” many life-saving policies are being quietly ended. California rescinded a statewide policy setting bail to $0 for low-level offenses, even as Los Angeles County continues to see record levels of new coronavirus cases. The threat of COVID-19 is still very much alive, and it highlights the arbitrary nature of our criminal legal system. Any and all policies to reduce arrests in light of COVID-19 should extend indefinitely, and should not be replaced with a system of fines and fees. 

The data shows: We don’t have to choose between public safety and public health. Reducing jail populations saves lives, and these reductions must continue.  

• We found crime data individually for each city or county. A spreadsheet tracking the datasets used for each location can be found here.
• Because each location’s crime dataset was drawn from separate sources and contained varying categorizations of crime, crime patterns should not be compared between cities. Additionally, because police data is often dynamic and constantly updated based on new reports, incidents may have changed since the time of analysis (early July, 2020).
• We analyzed only “Part 1” crimes (as defined by UCR) because they represent the offenses most likely to be consistently reported to the police. This classification was often manual, so should be viewed as estimates. Our code to clean and analyze the data can be found here. Some cities report crime data at the offense level, which sometimes includes multiple rows of charges per incident; others report at the incident level, only identifying the individual’s highest offense, and other cities report their data already aggregated at the monthly incident level. For each location with daily data, we aggregated the number of incidents to the month level, using each set of data’s unique identifier to mark one incident of crime. For data with many missing or null unique identifiers, we created a unique identifier based on time, date, and location where possible to reasonably estimate.
• When calculating the percent change in crimes between 2020 and 2019, we used the average number of crimes between March and May for both years. One exception was Portland, OR, where data was only available through April 2020. We calculated the percent change using just March and April data for both years.
• We primarily used the Vera Institute’s tracking of jail populations during COVID-19 to calculate incarceration/decarceration rates. We used the dates of 2/29/20 and 4/30/20 to look at change in jail populations. When jail population data on 2/29/20 and 4/30/20 was not available through Vera’s tracking or other public collection efforts, we obtained jail population numbers from local news reports. Date ranges of the “decarceration” time periods in these localities and accompanying alternative data sources are available here.

After three grueling years of law school, aspiring attorneys have one last hurdle to overcome in order to practice law: the bar exam. In normal times, the bar exam is daunting, as the multi-day test determines the professional fates of lawyers-to-be. This year, with the COVID-19 pandemic raging, the bar exam has gone from being unnecessarily burdensome to unnecessarily deadly.

Some states have granted bar admission to graduates of accredited law schools — a policy known as “diploma privilege.” But others are plowing ahead with exams — in-person or remote, on time or delayed. The policies and procedures for these exams are in constant flux. And the civil rights and civil liberties issues presented by this year’s bar exams are extensive.
This year, states are limiting law grads’ access to menstrual products and opportunities to pump breastmilk during the bar exam. This policing of when someone can change their tampon or if and when someone can pump raises serious sex discrimination concerns. 

Take the West Virginia bar exam, for example. “Feminine hygiene products” are explicitly prohibited in the testing room. Instead, the West Virginia Board of Law Examiners (WVBLE) requires those who are menstruating go to proctors to retrieve tampons or pads during the all-day exam. In response to rightful confusion from West Virginia bar examinees, the WVBLE has since stated that “there is no prohibition on bringing menstrual products to the test,” but it remains unclear if test takers can have the products with them in the testing room or not. 

Montana’s policy is even worse: Menstrual hygiene products are not included in the list of permitted items (although “medical items” are allowed), and the exam instructions do not otherwise indicate that these products will be provided to test-takers. And in Nebraska, one examinee was told that she needed permission in order to change her tampon more often than every two hours.

The notion that anyone can use a tampon to cheat would be laughable if it weren’t being used to disadvantage menstruating test-takers. In any event, other states have allowed examinees to bring menstrual products into exam rooms for years without incident.

States are also putting up unnecessary roadblocks for test-takers who are lactating. For example, administrators in Oklahoma refused to extend the 15-minute break for one woman to pump, even though that isn’t nearly enough time to prepare the equipment, pump, and clean and sanitize the equipment. Sadly, this problem isn’t unique to the pandemic: exam administrators have long created roadblocks for menstruating and breastfeeding test takers. But this creates further barriers to new parents entering the legal profession who are already facing an unprecedented lack of childcare.

Blocking access to menstrual products and opportunities to pump breastmilk during the bar exam is also a gender equity issue. First, more often than not, menstrual products are placed in women’s restrooms only. Failing to provide menstrual products in facilities that are accessible to everyone who needs them, including some transmen and non-binary people, leaves some test takers with no access to necessary products at all.

Also, what products will be provided? Menstruation is different for everybody, and those who menstruate know the products that work best for them. Not to mention the privacy concerns raised by needing to disclose personal medical information to proctors. Test takers who are breastfeeding are similarly negatively affected when exam administrators refuse to allow them to safely express breastmilk during the exam at an appropriate time and place, effectively preventing many new parents from sitting for the bar.

Bar examiners should be working to make the legal profession more accessible to those who already face barriers to success in the legal profession — including women, trans and non-binary people, and new parents — not less. Fortunately, some states have already reversed course in response to public outcry. But it shouldn’t take going viral on Twitter for all students to be able to sit for the bar exam in safety and dignity.

Anna Jessurun, Legal Intern, ACLU Women's Rights Project

Since the protests decrying the murder of George Floyd began in May, the institution of American policing has taken center stage. Activists are calling for change, and the phrase “defund the police” can be heard in cities across the country. As the concept of slashing police budgets and reinvesting those resources into Black and Brown communities goes increasingly mainstream, a more radical call is also gaining attention: Abolish the Police.

On At Liberty this week, attorney, author, researcher, and organizer Andrea Ritchie and senior staff attorney for the ACLU’s Trone Center for Justice, Carl Takei, joined us to talk abolition, divestment, and what a world without police might look.

“[Abolition is] about recognizing the instinct in all of us to punish people who hurt us, or to seek retribution instead of repair, and to acknowledge that actually in order to create a society that is free from violence, we have to move away from mobilizing the state and giving the state a monopoly on violence to respond to violence,” says Ritchie. “Instead, we need to dig to the root causes of violence and transform those conditions and causes, such that we can all have an opportunity to live in a world free of violence, not just people who are in positions of privilege in the current political, social, economic structure.”

Should We Abolish The Police?

Should We Abolish The Police?

Since the protests decrying the murder of George Floyd began in May, the institution of American policing has taken center stage. Activists are calling for change, and the phrase "defund the police" can be heard in cities across the country. As th...

Since the protests decrying the murder of George Floyd began in May, the institution of American policing has taken center stage. Activists are calling for change, and the phrase "defund the police" can be heard in cities across the country. As th...

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