Let’s not forget about criminal justice reform during the pandemic

As we face the most challenging public health crisis of our lifetime, we should not forget how that crisis interacts with and exacerbates another longstanding crisis: mass incarceration.

Last U.S. Supreme Court term, Justice Samuel Alito derisively suggested that the advocate before him was asking the court to "travel into space" when the attorney noted "the scientific, legal, and moral truth that most children, even those who commit the most grievous crimes, are capable of redemption." For Justice Alito, it was beyond the pale to suggest that the court incorporate into its 8th Amendment jurisprudence the very widely held understanding that most, and perhaps all, people are capable of redemption. The justice's suggestion was that even if the values underlying a punishment run contrary to the considered judgment of virtually every major social institution, if a legislature at some point in the past endorsed the punishment, the 8th Amendment does nothing to limit the punishment.

With the Delta variant of the coronavirus rapidly spreading, we as Californians are presented with an opportunity to opt for a different course, to choose to provide hope for redemption.

We already know that those in congregant living spaces -- such as prisons and nursing homes -- are most at risk of infection and death. And there are early indications that we are facing another crisis within our prisons. San Quentin has shut down legal visitation to try to avoid another devastating outbreak there. Santa Rita jail has an outbreak, and the Department of Corrections appears to be at risk of facing a surge of infections.

All of this spells lethal trouble. Indeed, inmate deaths from COVID-19 over the last 18 months have surpassed the total number of executions in the nation since 1976, giving weight to the claim that the "real death penalty" is the suffering and neglect associated with mass incarceration.

One problem with our state holding open the option of killing our citizens as a matter of public policy is that it blinds us to the other ways in which we degrade each other's humanity. If we are willing to render someone helpless and then torture them to death, the inhumanity of "merely" caging someone fades into the background. Tragically, our complacency led to overcrowded prison conditions so deplorable that the Supreme Court held that release of inmates was required to avoid "needless suffering and death."

But perhaps the problem runs deeper than complacency and into more troubled corners of our history. Perhaps it is not only the distraction of the death penalty, but also the demographics of who suffers from our complacency. California is not exempt from the racist administration of criminal sanction. People of color are dramatically overrepresented among our prison population as compared to the state's total population. For example, Black men represent approximately 6% of the total population of California, but 30% of our prison population. Latino men in California are imprisoned at nearly triple the rate of men of other races. The racialized realities of our system of punishment exacerbate the already disparate impacts of COVID-19. Maybe the problem is a disconnect between our abstract belief in redemption and the ugly realities of who we believe is worthy.

We are, however, slowly making amends. We now have a Racial Justice Act that empowers courts to reduce the disparate impact of the application of our laws and limit the practices of those with their hands on the levers of power in this state. We have reduced some of the harms created by the draconian three strikes law, reducing our prison population in the process. And we've literally dismantled our execution chamber.

There is, of course, much more work to be done. Our prisons remain beyond capacity. The death penalty remains on the books, with hundreds of millions of dollars still being wasted on obtaining and defending death judgments. Punishment of the accused, rather than healing for all involved, remains the primary focus of our policies.

It is tragic and true that some forms of violent crime have risen over the last 18 months. But correlation -- a rise alongside passage of reforms -- is not causation. Early indications suggest that the trend is national and present in communities with or without the courage to re-examine who it is we deem worthy of mercy and capable of redemption and the humility to re-think how we respond to violence.

Providing hope for redemption -- and recognizing rehabilitation -- could dramatically reduce the lethal and racialized impacts of both mass incarceration in general and the coronavirus in particular. Done correctly, freeing our fellow citizens from prison, an incubator of death and despair, will bring about healing and hope.

Criminal justice issues are being litigated in the public sphere, both nationally and as we in California vote in a recall election and as candidates vie for attorney general. But living out the deeply and widely held conviction that every person is capable of redemption should neither cause us to "travel to space" nor be a partisan issue. It should inform how treat each other. 