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How has Covid Impacted the Call for Reform for the

Criminal Justice System?

Olivia Sinkoff149

Since 2002, the United States has held the highest
incarceration rate in the world.150 Today, there are around two
million people incarcerated in U.S. state and federal prison,
local jails, and non-voluntary mental health facilities– many of
whom have yet to be convicted. There are 445,000 people in
local jails and another 88,000 in federal prisons who are
detained before their trial because they cannot afford bail
payment.151 The detainment rate increased exponentially
between 1980 and 1996, primarily as a result of the War on
Drugs which was a government initiative started by President
Nixon to dissuade drug abuse. Nixon increased federal
financial support for drug-control agencies and implemented
rigid laws and punishments for drug offenders.152 Critics of the
War on Drugs have pointed out that it has disproportionately
affected people of color – the increase in incarceration rates
for Black Americans and Hispanics during the seventeen years
the policy was active was one and a half times and three times
respectively, higher than the increase for white Americans. The
larger increase in incarceration rates for minorities is evidence
of systemic racism in the criminal justice system, which has
prompted numerous calls for reform.  Advocacy for reform was
amplified in May 2020, following the murder of George Floyd
and as the COVID-19 pandemic placed heavy burdens on the
criminal justice system. During this period, the Defund the

152 History.com Editors, “War on Drugs,” 2017.
151 Wagner and Sawyer, “Mass Incarceration.”
150 Wagner and Sawyer, “Mass Incarceration.”
149 Brandeis University Undergraduate, Class of 2023.

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Police movement assumed the mantle for criminal justice
reform. The criminal justice system tried to prevent the spread
of the virus by releasing thousands of inmates early.153 Less
than 0.2 percent of those inmates released have committed new
crimes, pushing the question of the integrity of the United
States’ system of incarceration to the forefront of social justice
concerns.

The United States has the highest incarceration rate and
most prisoners in the world.154 Due to the policies
implemented during the War on Drugs, the incarceration rate in
the U.S. skyrocketed in the latter part of the twentieth century,
which has disproportionately affected communities of color.155

In 2020, the Coronavirus pandemic compounded problems by
straining and highlighting weaknesses in the criminal justice
system. The criminal justice system faced both internal and
external pressures – from activist movements opposing law
enforcement practices  to prisons acting as virus super-spreader
locations requiring urgent attention.156 2020 was a period of
reinvigorated social activism calling for police accountability,
the end of racial disparities in the criminal justice system, and
creating alternative community safety options to policing; all of
these discussions coincided with the Black Live Matter
movement, which highlighted systemic racism, discrimination,
and inequality faced by black Americans. The result was
adaptations in how the United States approached criminal
justice, which included reducing low-level arrests, putting
aside traffic enforcement, emphasizing diversion programs, and

156 Wagner and Sawyer, “Mass Incarceration.”

155 Blumstein and Beck, “Population Growth in U.S. Prisons, 1980-1996,”
1999, 21.

154 Statista Research Department, “Ranking,” 2022.

153 Gill, “Opinion | Thousands Were Released from Prison during Covid,”
2022.

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releasing prisoners early.157 It also raised awareness of racial
inequality and discrimination in the criminal justice system.

The United States has the highest incarceration rates
primarily due to pretrial detainment policies that place burdens
on poorer communities. Incarcerated individuals are in jails
and prisons; jails, which run at county level, are primarily for
short term sentences and where people held pending
conviction, while prisons, which are run either at the federal or
state level, are for long term sentences after conviction. About
sixty-seven percent of detainees in jails are not yet convicted,
and most are held due to their inability to pay bail. In 2015, the
median income for pre-trial detainees was $15,598 compared
to median annual income of those released, $39,600.158 At any
given time, there are about two million people in federal and
state prison, juvenile corrections facilities, immigrant detention
centers, military prisons, and psychiatric facilities.159 All
together, these figures constitute an incarceration rate of 639
per 100,000 of the national population. El Salvador follows the
United States with the second highest incarceration rate of 562
per 100,000 of the population.160 More than half of incarcerated
people in the United States in 2022 – about 1.04 million – are
in state prisons, with the majority of prisoners sentenced for
violent crimes. The next largest group of 547,000 is those held
in local jails, 80 percent of whom have not yet been convicted
due to the lack of resources poorer communities have to post
bail.161

Between 1980 and 1996, mass incarceration rates in the
United States increased by 200 percent. This dramatic rise was
primarily composed of drug offenses, but was compounded by

161 Wagner and Sawyer, “Mass Incarceration.”
160 Statista Research Department, “Ranking,” 2022.
159 Wagner and Sawyer, “Mass Incarceration.”
158 Wagner and Sawyer, “Mass Incarceration.”
157 Jackson, “Criminal Justice in the Pandemic Era and Beyond,” 2021.

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an increase in arrests and commitment rates.162 In 1973, Cohen
and Blumstein described the stability of the early 1970s
incarceration system in their “theory of the stability of
punishment.” They argued that a nation’s stable incarceration
rate rests upon the economic and political pressures of an
incarceration rate that is unmanageable with the tolerance of
certain crimes. In other words, as crime increases, societies
adapt their regard toward certain crimes and whether offenders
should be incarcerated. If crime decreases, then offenders of
more marginal crimes, or low-level offenses, will tend to be
incarcerated at a higher rate.163 After the 1970s, incarceration
rates increased steadily.164

The War on Drugs influenced the shift in focus of the
criminal justice system to drug offenses. Drug use has been
present in the United States since the beginning, but Nixon’s
declaration of the War on Drugs criminalized drug use on a
massive scale. In 1970, the Controlled Substances Act, which
regulated specific drugs and classified them in degrees of
‘dangerousness”, was ratified. The following year, Nixon
officially classified drugs as “public enemy number one.” The
DEA was created in 1973 and had the sole purpose to rid
illegal drug smuggling and use. Under President Reagan, the
“Say No to Drugs” campaign resulted in mandatory prison
sentences for illegal drug use.165 Between 1980 and 1996, drug
offenders grew from the lowest number in the prison
population to the highest, growing from 15 prisoners per
100,000 adults to 148 prisoners per 100,000 adults.166 Critics

166 Blumstein and Beck, “Population Growth in U.S. Prisons, 1980-1996,”
1999, 21.

165 History.com Editors, “War on Drugs,” 2017.

164 Blumstein and Beck, “Population Growth in U.S. Prisons, 1980-1996,”
1999, 21.

163 Blumstein and Beck, “Population Growth in U.S. Prisons, 1980-1996,”
1999, 18.

162 Blumstein and Beck, “Population Growth in U.S. Prisons, 1980-1996,”
1999, 17.

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emphasize the racist implications of the established practices
set by the widespread criminalization of drug use. For example,
the Anti-Drug Abuse Act gave longer prison sentences for
using crack than using the powder form of cocaine – it took
100 times more cocaine than crack to have the prison sentence
time to be the same. This increased incarceration amongst the
black American community, where crack was more popular
than among white Americans who preferred cocaine. Not only
was race heavily influential in the sentence times allocated due
to the disparity between the type of drug use among different
racial communities, minority communities were also targeted
more heavily than white Americans. The War on Drugs caused
the disruption of minority and poor communities.167

It is well established that the penal system
disproportionately affects minority communities. During the
sixteen year period, incarceration rates for Black Americans
and Hispanics increased by 261 percent and 554 percent,
respectively, compared to 185 percent for white Americans.168

Arrests, convictions, and sentence times have increased for
various crimes including: murder, sexual assault, robbery, and
drug offenses in the latter part of the twentieth century.
Sentence time also includes time spent in recommitments due
to parole violations, which have also escalated. Parole boards
became more reluctant to release inmates when they first
became eligible for parole and became stricter with violations,
even technical ones, such as a violation of a condition for a
person’s release. An example of a parole condition would be
the banning of drug or alcohol use. The Parole boards have a
direct impact on incarceration numbers depending on how
strict or lenient they are with recommitting based on parole
violations and how long they take to release prisoners. During
the sixteen year period, drug use violations grew by a larger

168 Blumstein and Beck, “Population Growth in U.S. Prisons, 1980-1996,”
1999, 22.

167 History.com Editors, “War on Drugs,” 2017.

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percentage than other offenses leading to more drug-related
commitments.169

Prior to 2020, there were persistent calls to reform the
criminal justice system, particularly in regard to the increasing
number of inmates cycling through the prison system. Both the
public and experts have challenged the responsibilities that the
justice system is expected to perform, such as substance abuse
control, neighborhood conflict resolution, and handling mental
health emergencies; these burdens result in more people
incarcerated rather than given proper help, such as mentally ill
patients going to jail instead of a hospital.170 For example, in
Albuquerque in June 2020, Mayor Tim Keller announced an
initiative for the Albuquerque Community Safety Department
which would be a branch of responders composed of civilians
for non-violent situations that could be called instead of the
police.171 This taxing set of tasks was exacerbated during the
COVID-19 pandemic when law enforcement was given the
additional responsibilities that came with the onset of the
pandemic such as enforcing mask mandates. The pandemic
fundamentally altered and strengthened the connection between
public health and criminal justice and prompted additional
questioning of how the United States addresses criminal
justice.172 The spread of COVID-19 raised issues about public
health, and increased the politicization of many topics
including law enforcement.173

173 Jackson, et al, “How the Criminal Justice System's COVID-19 Response
Has Provided Valuable Lessons for Broader Reform,” 2021, 4.

172 Jackson, et al, “How the Criminal Justice System's COVID-19 Response
Has Provided Valuable Lessons for Broader Reform,” 2021, 2.

171 Parsons, Lo, Pearl, and Figgatt, “5 Discussions That Shaped the Justice
Reform Movement in 2020,” 2022.

170 Jackson, et al, “How the Criminal Justice System's COVID-19 Response
Has Provided Valuable Lessons for Broader Reform,” 2021, 2.

169 Blumstein and Beck, “Population Growth in U.S. Prisons, 1980-1996,”
1999, 37.

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In the early phases of the pandemic, police were
ordered to shut down events where guests were not wearing
masks, further emphasizing the link between public health and
criminal justice. The year 2020 was a period of reawakening
for many criminal justice reform movements. It was the year
that George Floyd was murdered by police in Minneapolis, an
event which sparked massive protests nationwide and
demanded tangible change to how the police function and
interact with the public.174 During this time, the main demands
raised were: an investment into alternative safety methods to
policing, an accountability of the police, the end of unjust
punishments, eliminating obstacles for people impacted by the
justice system and finally, removing racial disparities in the
criminal justice system. Changes came in the form of new state
campaigns and laws. For example, in regard to removing
barriers for convicts, California ratified a constitutional
amendment to reinstate the right to vote for parolees who were
convicted for felonies in November. That same month,
Philadelphia, in an effort to remove racial bias, passed a ballot
to include charter language to stop the unconstitutional
stop-and-frisk practices of the police that disproportionately
affect minority communities.175 The national unrest among
activists and the public further fueled a movement called
“defund the police.” This movement grew parallel to the Black
Lives Matter movement since many of the calls for reform to
the criminal justice system were based on racial disparities that
resulted in police killings of primarily black Americans, such
as George Floyd. This phrase has become heavily divisive,
with Republicans arguing that Democrats want the entire
removal of law enforcement from the streets. Democrats, on
the other hand, believe the current law enforcement policies

175 Parsons, Lo, Pearl, and Figgatt, “5 Discussions That Shaped the Justice
Reform Movement in 2020,” 2022.

174 Jackson, et al, “How the Criminal Justice System's COVID-19 Response
Has Provided Valuable Lessons for Broader Reform,” 2021, 4.

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that the majority of Republicans favor are riddled with lack of
accountability of police and racial bias. In regard to the
“defund the police” movement, in reality, many activists view
“defund” as reallocation. Activists are primarily concerned
with systemic racism within law enforcement, over-policing,
and gun violence. Some activists believe there needs to be a
“reinvestment in our underfunded systems,” such as social
services.176 Today, the “defund the police” movement has been
pushed to the back of America's minds. In 2021, a poll by Pew
Research Center found that the percentage of Americans who
supported budget cuts on law enforcement fell from 25 to 15
percent from 2020 to 2021. It also highlighted a discrepancy
between racial groups; 23 percent of Black Americans
supported the movement in comparison to 13 percent and 16
percent of white and Hispanic Americans, respectively.177

I. The Pandemic’s Toll on the Prison System

Within the first year of the COVID-19 pandemic, the
United States saw a 15% decrease in prison population and a
25% decrease in jail populations. This was due to a reduction
of the incarceration of prisoners rather than an increase in the
prisoner releases. In fact, there was a 40% decrease in prison
admissions, which subsequently created an extensive backlog
in court cases and prison transfers. Federal and state facilities
did little to prevent the spread of covid among the inmates in
large numbers. For example, with few exceptions, the justice
system failed to release detainees awaiting trials. Further,
inmates who were qualified for parole were not released to
empty prison populations in order to prevent the spread of the
virus. The lack of action resulted in unnecessary numbers of
illness and death in crowded prisons.178

178 Wagner and Sawyer, “Mass Incarceration.”
177 Blow, “'Defund the Police' Is Dead,” 2021.
176 Bates, “Defund the Police Movement,” 2021.

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The pandemic forced the justice system to adapt,
particularly the prison system, since the crowded nature of it
had the potential to spread COVID-19 quickly. In March 2020,
the Justice Department ordered the release of more than 11,000
federal prisoners to serve their sentence in home confinement.
Out of that 11,000, only 17, or 0.15%, were reported by the
Bureau of Prisons (BOP) to have committed crimes after
release.179 According to Washington Post author Molly Gill,
this low recidivism rate, the proclivity of a former inmate to
reoffend and relapse into criminal behavior, is a sign that many
more similar prisoners from low-security prisons can be
released. However, the candidates for release were highly
evaluated. The 11,000 prisoners were all in low-level security
prisons or at high risk to infection, and were given priority for
release. The only incarcerated group that were not even
considered for release was for those convicted of sex crimes.
Others were considered individually, evaluating their conduct,
prison record, and risk to the public community. Another
condition for release was that the inmates had somewhere to go
with supervision and support. The Cares Act raised awareness
that sentence times were often too lengthy. It focused on the
release of two groups, both of which, statistically, present very
little risk, or none at all. They included the elderly, who
according to data have a lower recidivism rate as they get
older, and the chronically ill and physically disabled who are
not dangerous but expensive to care for with tax money. The
success of the Cares Act in thoughtfully releasing low-threat
individuals highlights a potential solution to an overburdened
prison system with relatively low negative impacts and large
financial benefits.180 By August 2022, the BOP reported that
442 people who were released during Covid were back in

180 Gill, “Opinion | Thousands Were Released from Prison during Covid,”
2022.

179 Gill, “Opinion | Thousands Were Released from Prison during Covid,”
2022.

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prison despite only seventeen of them actually committing new
crimes.181 At least 230 of those sent back to jail were sent back
on a drug or alcohol related infraction. Others were sent back
because of a technicality, or noncriminal violations of
probation, which could have been as minor as not picking up
the phone when a probation officer calls.182

While alcohol or drug infractions, or the inability to
pick up a parole officer’s call in time, may warrant a case
review on the parolee’s release, it should be questioned
whether parolees should be simply sent back to prison based
on, oftentimes, small technicalities. Is it a waste of resources to
send former inmates back to state and federal prisons because
of such a small infraction that poses very little danger to
society? Reincarceration may be too severe of a punishment for
a simple missed call, especially considering how taxing and
costly keeping inmates is in the prison system. About 18% of
the inmate population in local jails are incarcerated for a parole
violation, and in some counties the number is up to a third. In
2019, 25% of state prisoners had been reincarcerated due to
supervision infractions.183 This data shows that the US prison
system is following its pre-pandemic mindset in regard to
incarceration. As a result, the prison population is steadily
making its way back to pre-pandemic levels.184

The prison population was the lowest during the
pandemic due to a significant decline in admissions, rather than
large releases of inmates. Admissions in jails and prisons,
locally and state level, were due to the deferment of cases and
some policy change. There was a 33% decrease in prison
population during 2020. Policy changes included issuing
citations instead of arresting, or choosing not to prosecute
people for low-level, or non-violent, crimes, and reducing bail

184 Wagner and Sawyer, “Mass Incarceration.”
183 Wagner and Sawyer, “Mass Incarceration.”
182 Johnson, “Released during COVID,” 2022.
181 Johnson, “Released during COVID,” 2022.

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costs. For example, Philadelphia discontinued arrests and
released more people charged for low-level crimes. With the
end of the pandemic, the courts have finally been able to catch
up with the cases it had set aside. In addition, cities like
Philadelphia have resumed making property crime arrests,
discarding pandemic reforms, fueling the re-population of jails
and prisons.185

II. Conclusion

The pandemic resulted in increased calls for reform
within the criminal justice system in regard to the
overcrowding of prisons and the allocation of resources within
law enforcement. At the same time, it provided the
environment to experiment with different approaches to the
prison system. Police deferred arrests or simply issued citations
instead. 2020 was filled with massive social demonstrations
and tangible change to law enforcement policies in an effort to
address the “defund the police” and BLM movements.
Additionally, many inmates were released early, under the
Cares Act after careful consideration of candidates, with an
astoundingly low recidivism rate that calls to question if the
United States should go back to its pre-pandemic approaches or
adapt. Despite the amplified calls for reform and the
extraordinary measures taken during the pandemic, state and
federal prison systems are showing a trend of returning to
pre-2020 incarceration rates and policies. Notwithstanding,
COVID-19 still played a vital role in changing people’s
mindsets in regard to the criminal justice system because it
emphasized many issues, including health and social justice,
that were faced by the most vulnerable – communities of color.

185 Wildra, “State Prisons and Local Jails Appear Indifferent to COVID
Outbreaks,” 2022.

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