Protests Amidst Pandemic Create Opportunities for Reform

Photo Credit: AP

In the midst of a global pandemic the state-sanctioned murder of George Floyd reignited protests and calls for racial justice in municipalities across the nation. While systemic racism permeates every American institution, mass incarceration, fueled by the War on Drugs, is perhaps the most troubling example of the deep-rooted anti-Blackness that pervades the justice system decried by the current protests.

The War on Drugs started during the Nixon administration in the 1970’s and was messaged to the public as a push for safety and a means to reduce crime rates. However, the War on Drugs and the ensuing laws and tough on crime policies were targeted at the Black community. Although this underlying racial animus was evident by the disproportionate effect drug laws had on the Black community, this nefarious intent was made explicit by Nixon aid, John Ehrlichman – who outright stated: “We knew we couldn’t make it illegal to be either against the [Vietnam] war or black, but by getting the public to associate the hippies with marijuana and the blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

The rhetoric voiced by Ehrlichman has carried through to the year 2020 and the “mythology of Black criminology” still stands. At the same time that wealthy, white Americans are profiting off of the legal marijuana industry, the criminalization of cannabis is simultaneously being used as a pretext to harass people of color, and in many cases to kill them. In 2018, 40% of the 1.65 million total drug arrests in the U.S. that year were for marijuana. Of those marijuana arrests, 92% were for possession and 8% were for selling or manufacturing. The ACLU has estimated that Black people are 3.73 times more likely to be arrested than their white counterparts for marijuana despite roughly the same usage. Meanwhile in 2018, Washington State alone made $317 million dollars in taxes from the same exact drug. Even with the legalization of weed in many states, enforcing marijuana laws cost about 3.6 billion dollars a year. The United States is spending billions of dollars a year to enforce laws to eliminate weed use despite the upward trend in legalization.

At the same time that our country is reckoning with the racism entrenched in our justice system, the ongoing COVID-19 pandemic is forcing the United States to grapple with mitigating the spread of an infectious disease among the largest incarcerated population globally. With the coronavirus exposing the deep inadequacies of the social safety net, the intersections of race, socioeconomic status, gender, age, etc. coalesce and implode within the realm of the criminal justice system. Specifically, incarceration facilities serve as hotbeds of the pandemic. Prone to overcrowding, with inaccessibility to healthcare and hygiene, the high foot traffic throughout such facilities serve to exacerbate the spread of the virus—now with the additional influx of mass arrests from the protests for Black lives.

Though COVID-19 response measures have been taken to decrease populations in incarcerated facilities, the arrests of protestors are serving as a counteractive force. Both the protesters and the public at large are placed at grave risk by police tactics that oppose the expertise of public health officials. Detained by the masses, “kettling” and detention, in general, forces protesters into confined areas that make social distancing an impossibility. Additionally, the violent uses of tear gas and pepper spray cause coughing in such spaces and create conditions in which people may need to take their masks off to breathe or to receive immediate medical treatment.

In the last weeks, over 10,000 protesters—many non-violent—have been held in detention, without access to running water or proper sanitation. Many are arguing that all low-level and non-violent offenders should be given a citation rather than be placed in detention during a viral outbreak, creating dire risks for public health. However, even before the latest mass protests and calls for reform, advocates have been calling for reform. Although varied, with state facilities trailing the response and results of their local counterparts, efforts such as statewide emergency bail schedules (eliminating bail for low-level felony offenses and misdemeanors); authorization of the release of people in pretrial detention for nonviolent offenses; conducting special hearings to release more people from local jails; among others, have brought about the reform that activists have long pushed for. Now, the added calls for broader, systemic reform in light of continued police brutality and killings of Black Americans, may represent the greatest opportunity for real change to our justice system in our lifetime.

The overpopulated criminal justice system has disproportionately affected Black Americans and people of color. The successful carceral reform, in response to the pandemic, can serve as empirical support in envisioning incarceration in a post-COVID world. Lucy Lang, former Manhattan assistant district attorney and current head of the Institute for Innovation in Prosecution at the John Jay College of Criminal Justice, remarked that the “emergency could be the spark that leads to innovation.” Looking toward a post-pandemic America, like-minded activists are proposing to capitalize on this moment in time to establish a new system that emphasizes the approach of restorative justice. With recommendations such as community policing, violence interrupters, reduced sentencing, bail reform, fairer parole policies, and decreased usage of solitary confinement, the future of criminal justice reform holds tremendous capacity for change.