INTERIM COMMISSION REPORT
The Commission bases its recommendations on the following general findings, each of which is relevant to the four core sectors of the criminal justice system:
Respiratory droplets from the nose and mouth are thought to be the primary mode of transmission of COVID-19. Physical distancing guidance is based on this mode of transmission. While the majority of transmission occurs via respiratory droplets, smaller respiratory secretions, called aerosols, can be suspended in the air and can also spread the virus. Aerosols may be the source of transmission in some super-spreading transmission events. It may also be possible to transmit COVID-19 by touching surfaces contaminated by the virus and then touching one’s own mouth, nose, or eyes, although there are no specific reports that have directly demonstrated such transmission and some scientists believe its risk may be exaggerated.
Infected people who do not yet exhibit symptoms of COVID-19 can still transmit the virus. The CDC estimates that 50% of new infections are from persons who had not yet exhibited symptoms. In addition, infected people who never exhibit symptoms of COVID-19 can also transmit the virus. The CDC estimates that 40% of COVID-19 infections are from asymptomatic individuals, who are approximately 75% as infectious as symptomatic individuals.
Symptoms may appear between two and 14 days after exposure (the average is four to five days). A report on more than 373,000 U.S. cases indicated that patients experienced cough (50%), fever (40%), muscle aches (36%), headaches (34%), and shortness of breath (29%). The spectrum of illness for COVID-19 ranges from asymptomatic infection to severe pneumonia with acute respiratory distress syndrome and death, with a majority of cases classified as mild. In a cohort of more than 72,000 symptomatic cases, 81% of reported cases were mild, 14% were severe, and 5% were critical. Critical cases included respiratory failure, septic shock, and/or multiple organ dysfunction or failure. The dose of COVID-19 exposure is likely to play a significant role in whether an exposure leads to asymptomatic infection, mild disease, more serious disease, or death. Age and underlying medical conditions, such as heart and lung disease and diabetes, are also significant factors in predicting the severity of the illness.
COVID-19 EXPONENTIAL GROWTH
Many people mistakenly believe that the number of COVID-19 cases grows in a linear manner, underestimating the potential of the virus for exponential growth. The average estimated number of new infections that a sick person will cause while infectious is known as the basic reproduction number of a disease. If that number is significantly above one, the disease is likely to grow exponentially. Estimates of the reproduction number for COVID-19 vary, but the CDC currently estimates that the number is 2.5. According to this estimate, one sick person is predicted to infect 2.5 people, who will in turn infect approximately six people, in turn infecting approximately 16 people, in turn infecting approximately 39, and so on. As a result, the virus can grow quite slowly at first and quickly thereafter.
The reproduction ratio is not a given and can be lowered by changes in behavior and proactive planning. Specifically, exponential growth of COVID-19 can be controlled using the combination of strategies described below.
FIGURE 3: EXPONENTIAL VS. LINEAR GROWTH
Note: Graph displays exponential and linear growth rates of 2.5.
COVID-19 Control Strategies
Physical distancing is a scientifically proven strategy for containing the spread of the virus. Respiratory droplets fall quickly to the ground after they are expelled, typically within three feet of the source. Physical distancing guidance is based on this mode of transmission. Physical distancing of one meter (about 3.3 feet) is associated with reduced transmission of the virus, while distancing of two meters or more is associated with even lower transmission. The U. S. has adopted six feet of distance as its protective standard.
While this level of distance is likely to protect against respiratory droplet spread (the most common mechanism of transmission), smaller particle aerosols are likely causing some level of disease transmission. Aerosols are capable of spreading across greater distances, most likely in indoor settings with little ventilation.
PROPER VENTILATION AND FILTRATION
The risk of transmission is higher in indoor environments, particularly for those who are enclosed in spaces with recirculating air and little opportunity for physical distancing. Generally, enclosed, poorly ventilated spaces with recirculating air are considered to pose a higher risk for COVID-19 transmission.
The CDC has provided guidance on improving ventilation in enclosed spaces such as office buildings. Measures to improve air quality and flow include, but are not limited to, moving activities and operations outside whenever possible, as well as using natural ventilation (such as opening windows), and improving central air filtration to increase outside airflow and optimize air exchange rates.
Air cleaners and filters are designed to filter pollutants or contaminants out of the air that passes through them. When used properly, they can help reduce airborne contaminants, including viruses. By themselves, cleaners and filters cannot eliminate exposure to COVID-19, but when used in combination with other measures, they can be part of a plan to protect people when indoors.
Along with the importance of handwashing and other hygienic habits, mask wearing has been widely recommended for reducing viral transmission from individuals with COVID-19, whether symptomatic or asymptomatic, to others. Consistent mask wearing both reduces transmission and protects against larger dose exposures. In one study of a large healthcare system in Massachusetts, a policy of universal masking for patients and employees was associated with steady declines in positive COVID-19 tests among healthcare workers. An evaluation of state policies showed greater declines in daily COVID-19 cases after issuing mask mandates compared with states that did not have mandates. In addition to the substantial evidence of benefit to the general public of wearing cloth masks, there is evidence that surgical masks provide even greater protection.
As of August 13, statewide orders mandating face coverings had been issued in 33 states and the District of Columbia. While the sovereignty of each state to deal with its own unique conditions and issues is acknowledged, given intrastate and interstate travel, the lack of uniformity and consistency in mask mandates has proven to be an obstacle to progress on containment of the virus.
Diagnostic testing for COVID-19 is rapidly evolving. The U.S. Food and Drug Administration has issued 158 Emergency Use Authorizations for 193 tests used in diagnosis and recognition of COVID-19 infection; these include 158 molecular tests, 33 antibody tests, and two antigen tests.
Molecular-based tests are considered the most accurate type of test for COVID-19, but these tests are not 100% accurate. People who have been infected and are incubating the disease in the days before the onset of symptoms might still test negative, so the effectiveness of testing depends heavily on timing.
Antigen tests are less expensive and faster than molecular tests; they can be used at the point-of-care and provide results in about 15 minutes. Antigen tests are generally less accurate than molecular-based tests, however, with some antigen tests producing as much as 20% false negative results, and others with much lower false negatives and characteristics approaching molecular testing.
Finally, antibody tests detect antibodies that are produced by the immune system in response to COVID-19; they do not diagnose current infections but can detect past infections.
Despite their lower accuracy, antigen tests are indicated for screening of asymptomatic individuals in settings like prisons and jails, with the CDC urging confirmatory testing using molecular-based diagnostics if an antigen test produces a positive result. CDC guidance states that “rapid antigen tests can be used for screening testing in high-risk congregate settings in which repeat testing could quickly identify persons with COVID-19 to inform infection prevention and control measures, thus preventing transmission throughout the congregate setting.”
While there is still some uncertainty, the emerging consensus is that antibodies are a good indication of at least temporary immunity for previously infected people. The durability and duration of immunity that occurs following infection remain unknown, largely because of the short time that the virus has been in circulation. Current research suggests that in most cases, COVID-19 immunity will last at least three months.
Vaccines represent the best way to prevent COVID-19. While no vaccines have yet demonstrated adequate safety and efficacy, an unprecedented global development effort is underway to find a viable vaccine. According to the WHO, 191 COVID-19 vaccine candidates were in development at the time of this report’s publication, including 40 in clinical trials. While it is difficult to predict, some experts expect that a limited number of vaccines will become available in the winter of 2020 and that this supply will subsequently scale up. If and when a safe and effective vaccine is approved, the number of doses will likely be limited initially. Because of this scarcity, the federal government will need to develop an allocation strategy to determine who will be prioritized for immunization.
COVID-19 Trends and Impacts
COVID-19 infections and deaths in the U.S. grew slowly at first, then escalated sharply in March and April. Daily infection counts then slowed, continued to decline through June, and then rose sharply again. In mid-July, the number of daily new infections peaked and declined through mid-September, at which point the number began to grow slowly. As of the time this report was released, daily infection numbers continued to grow.
There is significant uncertainty about how the COVID-19 pandemic will unfold over the next three to 12 months. In some countries, like New Zealand, transmission has been reduced so significantly that the virus has been virtually eliminated from the local population. In other countries, like the U.S., efforts to slow viral spread through stay-at-home orders and business closures were initially undertaken, which improved the trajectory of the outbreak but did not bring it under control.
The future of the COVID-19 pandemic depends heavily on the willingness of government leaders at the national, state, and local levels to control transmission through a series of interventions, and the willingness of people to adhere to recommended prevention measures. This will require a combination of population-level interventions, including masking and physical distancing orders as well as other measures to identify cases through rigorous testing, isolation of infected people, and quarantine of contacts of cases to break chains of transmission.
A number of nationally respected models are regularly updated to forecast COVID-19 deaths. An ensemble model combines many of these independently developed individual forecasts into one aggregate forecast. That model forecasts more than 218,000 deaths nationally in the next four weeks (on or about October 26). While this model and others provide short-term predictions, there are no models that reliably predict what will happen multiple months from now.
FIGURE 4: CORONAVIRUS CASES IN THE U.S.
Source: Centers for Disease Control and Prevention. Data as of September 28, 2020.
According to studies produced for the Commission, there was little change in violent crime rates during the early months of the coronavirus pandemic. In late May, however, rates of homicide and aggravated assault began to rise dramatically and remained at elevated rates for June, July, and August. Compared to the summer of 2019, homicide rates rose 53% and aggravated assault rose 14%. Gun assaults rose during the same period, but the increase was not significantly greater than the previous year.
Such heightened violence may be due to a combination of “de-policing,” e.g., a pullback by law enforcement, and “de-legitimizing,” a pullback by disadvantaged communities of color due to breached trust and lost confidence in the police. Evidence-based strategies are available to address the increase in violence, but addressing the coronavirus pandemic may be a necessary condition for success, as physical distancing requirements greatly inhibit the ability of police, service providers, and outreach workers to perform the face-to-face outreach on which many successful anti-violence strategies rely.
Property and drug crime rates fell significantly during the spring and summer of 2020. Between March and August of 2020, residential burglary rates declined 25.3% compared with the same six-month period the year prior. Larceny rates decreased by 24%. Drug offenses dropped dramatically, by 41%. Nonresidential burglary rates spiked by 124% during the first week of June 2020, coinciding with mass protests in response to police violence, but then rates quickly returned to normal.
FIGURE 5: TRENDS ACROSS U.S. CRIME CATEGORIES
Source: Impact Report: COVID-19 and Crime. Presented to the Commission by Richard Rosenfeld and Ernesto Lopez. Data as of September 5, 2020.
According to the study, these reductions reflect significant changes in activity patterns on the part of both the public and the police. For examples, when residents stay at home they reduce the opportunities for burglars. When businesses close there is no shoplifting. When police prioritize other matters, drug enforcement activities may decline.
According to a separate analysis presented to the Commission, the COVID-19 pandemic led to a 9.7% increase in domestic violence calls for service to police during March and April, starting before state-level stay-at-home mandates began. Applied nationally, this finding suggests there were approximately 1,330 more domestic violence calls for service per day across the U.S. during the study period. An analysis of the location of calls indicates that many originated from households that previously had not reported domestic violence.
States project that their revenues will be $200 billion lower than originally expected — down by $75 billion in fiscal year 2020 and $125 billion in fiscal year 2021, or roughly five to ten percent of all state-generated revenue. Past relationships between unemployment and government finances suggest that combined state and local budget shortfalls could climb as high as $1 trillion over three years, according to an analysis presented to the Commission.
Unlike the federal government, state and local governments must balance their budgets. This means officials will need to increase taxes or cut spending. To close the gap, state and local governments have already eliminated 1.5 million public jobs since February, reducing state and local public employment to levels not seen since 2001.
More and deeper cuts are likely, especially if additional federal aid is not forthcoming. Governors from a range of diverse states—including Colorado, Kentucky, Ohio, Oregon, and Wyoming—are calling for across-the-board cuts exceeding ten percent in the current fiscal year. A National League of Cities survey found that three-fourths of municipalities have already made spending cuts, with many resorting to across-the-board reductions.
While it is difficult to predict how these large budget cuts will affect smaller community-based programs, several cities have cut programs such as youth services that likely include community-based safety and crime reduction programs.
SUBSTANCE USE TRENDS
According to the American Medical Association, more than 40 states report increases in opioid-related fatalities since government officials began implementing COVID-19 responses. The Overdose Detection Mapping Application Program reports an 18% increase in overdoses nationwide since the beginning of the pandemic. A national laboratory service reports increases in positive drug tests for non-prescribed fentanyl (32%), methamphetamine (20%), and cocaine (10%).
According to an analysis produced for the Commission, COVID-19 has significantly altered the delivery of substance use disorder (SUD) treatment in the justice system. Mandatory lockdowns, restrictions on movement, physical distancing guidelines, orders limiting access to facilities for non-essential workers, and the unavailability of in-person treatment have created gaps in the system’s ability to identify and monitor the needs of people with SUDs, and to intervene when they are in distress. Experts warn that the stress of the pandemic, combined with new barriers to treatment, have greatly elevated the risk of SUDs both inside and outside the criminal justice system. Early reports of relapses and overdoses seem to confirm these fears.
Justice-involved populations with SUDs have been impacted by the pandemic in multiple ways. Enhanced restrictions intended to reduce the introduction or spread of COVID-19 within correctional facilities, for instance, have negatively impacted the delivery of SUD medications and treatment. Those who participate in drug courts are under strain as agencies transition from face-to-face to remote services. Many under community supervision lack access to the technology needed for virtual appointments, and thus face interruptions in treatment that are likely to result in adverse health effects.
Ensuring access to evidence-based treatment proven to reduce the risk of fatal overdose is challenging in a pandemic – though not impossible. A systematic review of substance use, treatment retention, and feasibility of SUD treatment via video conference concluded that telemedicine was an encouraging option, especially when treatment retention was an important outcome. Telemedicine provides behavioral and/or physical health care via telephone, mobile apps, web-based treatment supports, and video conferencing, although justice-involved populations often face challenges in accessing such technologies.
The disparate negative impacts of the criminal justice system on poor people of color, especially Black people, are well documented. People of color also experience higher rates of disease and illness and are almost twice as likely to be uninsured as White populations. In addition, poor people of color face elevated infection and mortality rates from COVID-19. Even when controlling for income, counties with large non-white populations have significantly higher infection rates. Within counties, federal data shows that Latino and Black residents are three times as likely to contract the virus as their white neighbors.
According to an analysis produced for the Commission, few criminal justice agencies are collecting and reporting COVID-19 data according to race. The absence of such data makes it difficult to reach strong conclusions concerning the impact of COVID-19 on racial disparities in the criminal justice system.
Despite this, there is emerging information that some criminal justice responses to the coronavirus pandemic may disproportionately impact certain groups. For example, as jails reduced incarcerated populations after the onset of the pandemic, there were increases in the proportion of people in jail who were booked on felony charges, who were male, who were 25 or younger, and who were Black.