The COVID-19 pandemic has illuminated many weaknesses in the American healthcare system, but chief among them is a neglect of the health of American prisoners. Prisons have become disease epicenters, and the fact that officials are scrambling to contain the spread highlights a long-standing need of the U.S. justice system — bail reform. 

The vastly unjust cash bail institution is perhaps one of the most overlooked issues within the U.S. Justice Department. In November 2019, Harris County’s Chief U.S. District Judge Lee Rosenthal ruled that it is “fundamentally unfair to detain indigent people arrested for low-level offenses simply because they can’t afford to pay bail” and promptly ordered the release of such inmates. She also posited that being detained before trial makes an accused person much more likely to plead or be found guilty than those who are out on bail, which violates “equal protection rights against wealth-based discrimination.” 

The difference between the conditions for people within prisons and people living in their normal communities is dramatic even in normal times, but in the middle of a worldwide pandemic, the inequality of conditions moves from being dramatic to simply unconscionable. No one should be forced to live in a place where one does not even have reliable access to basic hygienic supplies, regardless of their offenses. The fact that some inmates are currently facing such conditions is a gross violation of the values that the U.S. justice system and the Eighth Amendment of the Constitution were founded on. Even worse, who these inmates are is not determined by the severity or number of crimes committed; it is determined only by a factor of wealth and ability to pay bail. 

Since the original onset of COVID-19 in the U.S., prisons have been the focal points of breakouts from state to state. For example, as of late April, the Cook County Jail outbreak in Illinois affected 400 inmates and 200 correctional officers. Around the same time, in New York’s Rikers Island, the rate of infection climbed as high as 9% of the prison population. The number of infected inmates has only since increased, with around 6,500 testing positive in Texas alone by the end of late May. Nationally, as of June 10, there are around 40,000 inmates nationwide with confirmed cases of COVID-19. 

This trend is especially apparent in the Texas prison system. Throughout April, there was a 38,000% increase in the number of confirmed coronavirus cases in Texas prisons. On May 1, the Texas Department of Criminal Justice reported 1,151 inmates with confirmed cases of COVID-19, as well as 1,103 inmates in isolation and a whopping 19,905 placed on “medical restrictions.” As of early June, the number of infected inmates had risen to nearly 7,000. 

This is unsurprising after one considers how the conditions inside correctional facilities are especially conducive to spreading disease. First, approximately 0.7% of the U.S. population is currently incarcerated, which means that about 698 out of every 100,000 U.S. citizens are behind bars. This leads to very crowded prisons and limits the ability to practice social distancing, which accelerates the human-to-human transmission of disease. 

The lack of protection for indigent citizens inside correctional facilities is jarring. Inmates in Washington, D.C., and Texas prisons have initiated lawsuits against state and local correctional systems for violating their Eighth Amendment rights. The lawyers representing the inmates gave examples of the prisons’ constitutional violations, including depriving inmates of soap. They are also suing over not being able to use hand sanitizer they helped make. Furthermore, the Texas inmates are suing for more soap, hand sanitizer, and paper towels. 

In order to reduce the number of inmates and personnel infected, some states have begun enacting new protocols. Such measures include physical distancing, often by consigning one inmate to each cell and limiting group interactions. Other suggestions involve exponentially increasing the number of tests being performed “to gauge the scope of their outbreaks and catch early warning signs of a pandemic,” as well as canceling visitation, making hygiene products more available, and guaranteeing paid sick leave to staff. 

The most controversial of these new protocols is releasing inmates. Each state has different criteria to determine which inmates should or should not be released. Most states only release non-violent or misdemeanor offenders. For instance, in Texas, some counties began releasing inmates on personal recognizance bonds, which allow inmates to be released without paying any fee, provided they show up for future court appearances and refrain from any illegal activity. 

Travis County was one of the first Texas counties to begin releasing inmates. Between March 16th and April 10th, the population of the Travis County Jail was reduced to nearly half of its original size. However, soon after, Governor Greg Abbott released a statement decrying the county’s actions and asserting that “releasing dangerous criminals from jails into the streets is not the right solution.” He then issued a statewide executive order that prohibits the release of inmates that “have been previously convicted of a crime that involves physical violence or the threat of physical violence, or any person currently arrested for such a crime that is supported by probable cause…”

However, while Governor Abbott’s executive order prevents the release of such inmates on personal recognizance bonds, it has one glaring caveat. Eligible inmates can still be temporarily released — if they can afford to pay bail. This loophole forces indigent citizens who cannot make bail to live in communities where COVID-19 runs rampant, underscoring the wealth-based discrimination Judge Lee Rosenthal used as the basis for her decision to eliminate the cash bail system in Harris County. 

In a time riddled with so much uncertainty, we are called to evaluate all members of the community — including those residing in prisons — with compassion and empathy. The injustice of the cash bail system has gone on for long enough, and we can only hope that it will be among the many institutions reformed in the aftermath of COVID-19.