How States Are Using Executive Orders to Reduce Incarceration During the COVID-19 Pandemic

Authors: Jillian Stein, John Kozar, Sharika Rakibullah

As of July 12, 2020, more than 64,000 incarcerated individuals tested positive for COVID-19. A recent epidemiological study conducted by academic researchers and the American Civil Liberties Union estimates that, unless action is taken, jails will cause between 100,000 and 200,00 additional deaths across the United States. To slow the spread, public health experts have urged policymakers to find ways to responsibly and rapidly reduce the number of people in jails and prisons.

A group of social scientists and data scientists at Mathematica wanted to learn more about how states were addressing this issue. We conducted searches for relevant policies in the 50 U.S. states, the District of Columbia, and five U.S. territories1. We observed a range of efforts by district attorneys, judges, and state executive branches to reduce incarceration. Because executive orders were the most frequently used type of state-wide policy, we focused our initial efforts on documenting and visualizing (1) which states used executive orders to reduce incarceration during the pandemic and (2) which populations of justice-involved people were impacted by these policies.

Use the visualization below to explore which states have used executive orders to release or divert people from incarceration and which justice-involved populations are impacted by these policies. Continue reading for a short summary of our initial findings and suggestions for further research into the impacts of these policy changes.

Which states used executive orders to limit incarceration during the pandemic?

As of early June 2020, a total of 15 states had executive orders that limited incarceration by releasing or diverting people.

Of the 15 states with relevant executive orders:

  • Five states passed executive orders that both released and diverted people from incarceration.
  • Eight additional states passed executive orders that called for the release of incarcerated people.
  • Two additional states passed executive orders that diverted individuals from incarceration.

Which populations of people are impacted by these executive orders?

Of the 13 states releasing individuals from incarceration:

  • Most are releasing people who are at an elevated risk of contracting the coronavirus, such as older adults (eight states) and people with preexisting health conditions, including pregnancy (eight states).
  • Some states’ executive orders explicitly limit releases to individuals convicted of nonviolent offenses (seven states), nonsexual offenses (five states), or technical violations of probation or parole (two states).
  • Six states are releasing individuals who are nearing their scheduled release date.

Among the 7 states diverting individuals from incarceration:

  • Three states temporarily suspended intake into juvenile detention facilities.
  • One state suspended the requirement to arrest people who commit low-level offenses.
  • Three states temporarily suspended the use of incarceration for individuals who violated probation or parole.

This work documented how states are using executive orders to limit incarceration during the COVID-19 pandemic. Nevertheless, many questions remain regarding the public safety and health implications of these reforms – overall and by sub-groups such as race. Although it will be hard to draw definitive and generalizable conclusions from research conducted during the pandemic, this work should encourage researchers and policymakers to look for innovative ways to draw lessons from these unprecedented policy changes.

The authors wish to thank the following colleagues for their contributions to this project: Tara Merry, Aivo Kivi, Sarah Castro, Rhiannon Jones, Eliza Abendroth, Kevin Conway, Matt Stagner, Marykate Zukiewicz, J.B. Wogan, Demetrius Goosbey, and Caitlin Blocker.

Notes

1 Our searches included these five U.S. territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.