By Amanda Manzano
The rapid spread of COVID-19 has disrupted business as usual across the globe and created a “new normal” for human social behavior; a normal that U.S. prisons and jails as we know them do not have the luxury, or ability, to implement. Physical distancing in public, self-isolation, and the use of face masks have all cemented themselves as routine practices in daily American life per CDC guidelines issued in the virus’s wake. The CDC advises that avoiding exposure to the illness is the single best measure to prevent infection, and accordingly, recommends a minimum of six feet between person to person. The Federal Bureau of Prisons (the “BOP”) has limited visitation, transfers, and staff training to limit the spread as much as possible, but what is happening within prison walls to manage internal spread and keep inmates safe? The reality is, the infrastructure of American jails and prisons is such that managing disease is difficult during ordinary times, let alone in a pandemic of this magnitude, and the virus is taking its toll behind bars.
The BOP notes modified operations in light of COVID-19 to maximize social distancing. These efforts include “consideration of staggered meal times and staggered recreation times . . . to limit congregate gatherings.” A cursory glance at infections throughout the BOP’s 122 facilities demonstrates this response is failing. As of April 23, 620 federal inmates and 357 BOP staff have tested positive for COVID-19. Twenty-four inmates have died. Reports from state prisons are even more grim. The Marion Correctional Institution in Ohio is home to one of the most rampant outbreaks in the country. There, 73 percent of inmates have tested positive for the virus. The Ohio Department of Rehabilitation and Correction reports 3,816 inmates and 346 staff have tested positive in its twenty-eight facilities. At Rikers Island, home to New York City’s largest jail complex, upwards of 1,000 inmates have contracted the virus.
Pandemic aside, the CDC acknowledges that health problems are more apparent in jails and prisons than in free communities. The close proximity among inmates and staff, poor circulation, and limited sanitization resources create a breeding ground for contagious disease, and our ability to respond within the current framework is limited. As it stands, the United States has nearly 2.3 million individuals in our jails, prisons, and juvenile correctional facilities. By the numbers, following social distancing guidelines within these institutions would be impossible for the 10.6 million people going into jail each year and additional 600,000 checking into prisons. The BOP’s modifications of staggered meal and recreation times cannot overcome crowded cells and intake rooms to prevent the spread of a virus of this contagion.
For the time being, the best measure of precaution for the safety of inmates, staff, and the general public is to reduce jail and prison populations as much as possible. U.S. Attorney General William Barr released a memo on April 6 that addresses the heart of this remedy and contentious issue generally: pretrial detention. The purpose of pretrial detention is to assure (a) the appearance of the defendant at trial and (b) the safety of others. The Attorney General acknowledges the risk that every new intake poses to our jails and prisons and recommends an analysis weighing each defendant’s individual risk of flight and threat to the community against the benefits of preventing spread of COVID-19 in these vulnerable institutions. Some cities have halted arrests and prosecutions for low level offenses to help control the flow of inmates. Some have even begun to release low-level offenders from their sentences to clear even more space. Additionally, some argue the elimination of cash bail would avoid undue risk to those who have not been convicted of a crime and free precious space in our jails. A defendant’s inability to post bail during a pandemic broadens the threat from a person and a community to our entire society as each jail and prison becomes a hot spot for COVID-19.
The infrastructure of our prison complexes and the ethics of incarceration in the United States present challenges every day. COVID-19 highlights some of our shortcomings in the most dramatic of fashions, demonstrating how the risks of crowded and unsanitary facilities extend far beyond those walls. These institutions achieve segregation but cannot, in even the best of circumstances, entirely insulate themselves from the greater public. Providing inmates and corrections staff with subpar facilities and operations will reflect on communities accordingly, and the spread of COVID-19 has shown exactly that.
 Coronavirus Disease 2019, CDC (Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
 BOP Implementing Modified Operations, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/covid19_status.jsp (last visited Apr. 24, 2020).
 About Our Facilities, Fed. Bureau of Prisons, https://www.bop.gov/about/facilities/federal_prisons.jsp (last visited Apr. 24, 2020).
 Bill Chappell, 73% of Inmates at an Ohio Prison Test Positive for Coronavirus, NPR (Apr. 20, 2020, 3:58 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/04/20/838943211/73-of-inmates-at-an-ohio-prison-test-positive-for-coronavirus.
 COVID-19 Inmate Testing, Ohio Department of Rehabilitation and Correction (Apr. 23, 2020), https://coronavirus.ohio.gov/static/DRCCOVID-19Information.pdf.
 Deanna Paul & Ben Chapman, Rikers Island Guards Are Dying in One of the Worst Coronavirus Outbreaks, Wall St. J. (Apr. 22, 2020, 8:19 AM) https://www.wsj.com/articles/rikers-island-jail-guards-are-dying-in-one-of-the-worst-coronavirus-outbreaks-11587547801.
 Correctional Health: Behind the Wall, CDC, https://www.cdc.gov/correctionalhealth/default.htm (last visited Apr. 24, 2020).
 Stir Crazy – Prisons Worldwide Risk Becoming Incubators of COVID-19, The Economist (Apr. 20, 2020), https://www.economist.com/international/2020/04/20/prisons-worldwide-risk-becoming-incubators-of-covid-19 [hereinafter Stir Crazy]
 See Id (discussing current incarceration rates and annual trends in new incarcerations). See also Stir Crazy, supra note 14 (analyzing the role of prison population in increasing risk of COVID-19 spread amongst the incarcerated).
 Memorandum from the Office of the Attorney General for All Heads of Department Components and All United States Attorneys (Apr. 6, 2020), https://www.justice.gov/file/1266901/download [hereinafter Attorney General’s Memorandum].
 18 U.S.C. § 3142(e)(1) (2018).
 Attorney General’s Memorandum, supra note 17.
 Chris W. Surprenant, COVID-19 and Pretrial Detention, Mercatus Ctr. (Mar. 30, 2020), https://www.mercatus.org/publications/covid-19-policy-brief-series/covid-19-and-pretrial-detention.