The risk of coronavirus (COVID-19) spreading in prisons is especially acute. This has resulted in an unprecedented number of prisoners being released across the world – including many prisoners in the United States. From the health, social, and political perspectives, this is a sound approach. This is especially the situation in relation to older prisoners and those who have not been imprisoned for serious sexual and violent offenses. Despite the large number of prisoners that are being released, the United States will still have the largest prison population on earth—and by a large margin. However, the coronavirus pandemic and the response to it has considerably wider implications for the broader criminal justice system. In particular, it brings into focus a large number of other unintended adverse consequences experienced by prisoners. These include being deprived of the right to procreate; materially increasing the risk that they will be assaulted or raped in prison; and suffering a considerable reduction in their lifetime earnings. The familial relationships of most prisoners are also normally materially impaired. The adverse incidental harms associated with prison and the impact that this should have on sentencing law is an under-researched area of law. This Article fills that gap in the literature: we argue that sentences for most offenders should be reduced to accommodate the incidental hardships experienced by prisoners. The result would be a large reduction in the United States prison and jail population, without an increase in the crime rate.
Mirko Bagaric, Peter Isham, and Jennifer Svilar
The Increased Exposure to Coronavirus (COVID-19) for Prisoners Justifies Early Release: And the Wider Implications of This for Sentencing—Reducing Most Prison Terms Due to the Harsh Incidental Consequences of Prison,
48 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol48/iss1/12