COVID-19 prisoner releases are not a matter of mercy, but of justice

A prison or an immigration detention centre is a terrible place to be during a pandemic. With so many people packed in together, the virus can easily spread. In light of this, some governments have started to release some prisoners and immigrant detainees.

However, the number of releases has varied considerably across countries. While Turkey and Iran are releasing tens of thousands of prisoners, many Western democracies have dragged their heels. Canada, Australia and the Netherlands were all slow to act. The UK had plans to release up to 4,000, 5% of the prison population, but actual releases were few and then halted altogether after an administrative botch freed the wrong people.

Around the world, the most common response has been to lock prisoners in their cells and deny them visits. This has not gone down well with prisoners. Riots have broken out in Italy and Colombia.

The picture regarding immigration detention centres is no less bleak. After COVID-19 outbreaks in New Jersey detention centres, the US Immigration and Customs Enforcement (ICE) released several hundred people, but given that the US has the largest immigration detention regime in the world, those are not large numbers. John Sandweg, who headed ICE under Obama, has called for the release of all detainees spare those who pose a safety or flight risk. In the UK, detained immigrants have decried not only the lack of releases but also disease prevention measures within facilities. They report insufficient masks, hand gel and testing.

In the case of both prisons and detention centres, campaigners are urgently calling for releases to be stepped up, with priority awarded to the most vulnerable: the many incarcerated people who are elderly, in poor health or both. (If you think prison is just for youngsters, you are wrong. In the US, there are now more prisoners over 55 than between 18-24). But what exactly is the case for releases? Why should people who have committed crimes or immigration infractions be released?

The most obvious answer is humanitarian. On this view, cold justice would demand the incarcerated stay inside, but a decent society tempers justice with mercy. When people’s health is at risk, we are willing to overlook past discretions. The more practically minded will add that it is not just prisoners who are at risk. When prisoners get the virus, they spread it to staff, who spread it to the wider public.

Humanitarianism and public health might both then speak in favour of releases. But, I think we are in danger of understating the case. In an age of pandemic, protecting the incarcerated is best regarded not as matter of mercy, but of justice itself.

To see this, we need to consider a concept that is central to justice, both in law and ethics: proportionality. Proportionality holds that people cannot be subject to undue costs even for the sake of valuable goals. Its importance is perhaps best illustrated by examples from times and places when it has been violated. In the Middle Ages, for instance, people were hung for theft and other petty crimes. Today, we recognize that as wrong. It is not that hanging petty criminals didn’t achieve legitimate goals, such as deterring further crime. No doubt it did. Rather, hanging was wrong because the cost imposed was so utterly beyond what the criminals were due, given the crimes committed.

Proportionality is important then in the punishment of criminals. It is also crucial when imposing immigration restrictions. Even if we agree that restrictions are sometimes justified, not everything can be done to enforce them. Such severe measures as separating children from parents, or, as the Danish People’s Party notoriously suggested, shooting at migrant boats, are simply unacceptable. This is true whether or not such measures help to deter unauthorized crossings. Effectiveness and proportionality are separate considerations.

Now, consider the pandemic. Before it started, judgements were made as to what would be proportionate treatment of criminals and unauthorized migrants. This is particularly obvious in the case of criminals. Criminals undergo sentencing, the whole point of which is to identify a proportionate punishment. In the case of immigrants, the length of detention tends to be indeterminate (a controversy in itself), but even so there is judicial review and an expectation that detention will be temporary. One further point is so obvious one could easily skip over it: immigrants, as well as almost all criminals (those not on death row) are only supposed to lose their liberty. Their bodies are meant to remain unscarred and intact.

But in the face of what is meant to be, the pandemic changes everything. People are now not subject only to a loss of liberty. Their lives are put at risk. It is as if people have had their old sentences ripped up and new ones handed down. In addition to whatever the courts and immigration tribunals decided they were due, they are now exposed to the virus as well.

Am I suggesting that everyone should be released? No. We still need to weigh the goals of incarceration against the costs. But how we make that calculation must change. Given the pandemic, large numbers must now be released, starting with those who pose the least threat to society or the most vulnerable to the disease.

Hanging petty criminals was wrong. Shooting migrant boats would be wrong. Refusing to release prisoners during a pandemic falls short of that but it is not altogether different. It too fails proportionality. Justice requires we do better.