The Pandemic’s Effects on Mass Incarceration With Susan Sturm

By: Hannah Lin (CC '23)

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Cover illustration by: Vanessa Vasquez (SEAS '23)

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Susan Sturm, JD, is the George M. Jaffin Professor of Law and Social Responsibility and the founding director of the Center for Institutional and Social Change at Columbia Law School.

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Could you talk about your background?

In my capacity as both a researcher on the faculty and also the director of the Center for Institutional and Social Change, I’ve been doing a fair amount of research and leadership development work related to reducing mass incarceration and, in particular, understanding and building the leadership of people who have direct experience with the criminal legal system. 

Recently, I’ve been working to gather and support the sharing of resources with lawyers, advocates, and others that are trying to support and advocate on behalf of people who are currently incarcerated and affected by COVID-19, as well as their family members. I’m also the vice president and policy director of an organization called the Broadway Advocacy Coalition. I’ve been doing a lot of work with that organization as well, related both to COVID-19 and also to the recent national reckoning related to race and racism. 

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Before we jump into what you’re working on right now, could you give an overview of how the pandemic is shaping society from your legal perspective?

I think the pandemic is amplifying and making visible forms of inequality that have been present really since the inception of our country but that have not necessarily been the focus of sustained public attention or concern, at least not in the last several decades. There are the obvious ways in which COVID-19 has affected people: social distancing and the things that we all know about, that everyone is experiencing in one way or another. What I’ve been observing is the profound and deep impact on communities that have already experienced disinvestment or marginalization and that are experiencing COVID-19 that much more intensively in every respect: more likely to have pre-existing conditions because of their connection to poverty or poor healthcare resources beforehand or conditions that are associated with inadequate support for housing and things like that. 

Also, the work that I’ve been doing has really been focusing on the impact of COVID-19 on people who are incarcerated. On one hand, it’s really profoundly different in the idea of closing down access to the prison, the level of impact in terms of the spread, all the challenges that are associated with this kind of virus. And at the same time, some of the patterns that we are seeing are more extreme versions of things that have long existed in prisons and jails: inadequate healthcare, the inability of the bureaucracy to respond in any kind of nimble way that deals with the humanity of the people who are affected, and 

just the failure of social policy that has relied on criminalization as a way to deal with ​ issues or problems that would be much better dealt with through other strategies, such as public health strategies and strategies that engage people in the community. ​

That’s a lot of what COVID-19 has done. It has accentuated the impact that people have been experiencing in a way where the consequences are fatal. Because so much is shut down, because there are so many systems that are going to have to face new ways of doing work, and because of the visibility of what’s happening, I think COVID-19 has also opened up some real possibilities for dealing with these problems in a much more structural and systemic way than has been possible up until this point. 




What are some approaches that could be pursued?

First of all, over-incarceration is something that people have recognized as an issue, as a problem. The United States has the highest incarceration rate in the world, and we’ve used incarceration as a punitive approach that really doesn’t work to advance public safety or to help people rebuild lives. We’re talking both about people who are experiencing crime and people who have committed crimes. COVID-19 is opening up the possibility of, for example, relying much more on community based efforts to deal with issues of crime, to think about public health kinds of approaches because prisons and jails cannot safely hold people, particularly 

people who are vulnerable, so the only solution that is really available is release. There’s beginning to be evidence that people who have been incarcerated and have been released really did not require incarceration in the first place. ​

The mechanism to release people who are incarcerated who are threatened with serious illness or death exists, even in the current system, but many public officials have been unwilling to use them, whether it’s judges, the governor, or the commissioner. The consequences, I think, are part of what really needs to be documented: the consequences of essentially tolerating conditions that public health officials have made clear will increase death rates within prisons and jails.

I think the level of public attention around the structural problems that are built into our current approach to incarceration opens up the possibility of really shrinking the footprint of prisons and jails and moving more toward restorative justice type approaches that are grounded more in the community. There is evidence of the lack of capacity of the prison and jail complex to navigate something like a pandemic and the disproportionate impact not only on people incarcerated but also on everyone who has contact with those people—people who are working in prisons and jails, their family members, et cetera. As the consequences for those communities become more visible and there’s more public attention focused on those, there opens up the possibility for having really serious conversations going forward. 

We’ve talked about shifting our approach to policing, defunding the police as we currently know those systems, and creating more community grounded ways of advancing public safety. It won’t necessarily, but I think it can link to efforts to really shift the approach of incarceration as the remedy of choice when someone commits crime and look at more restorative and community centered solutions that would both preserve public safety and enable people to get the healthcare treatment and quality education that they need and should have as a matter of right. I think all of these are possibilities 

that are in the wings as we grapple with the complete failure of the systems as they are currently operating to manage in this crisis and the mobilization of communities that I think are going to stay engaged and create the public pressure that’s needed to shift the emphasis from incarceration to public health.




Can you talk about the research you are working on right now?

A bunch of the research that I’ve been supporting has been in collaboration with a group of advocates, a national organization that’s called Zealous, which brings together public defender offices from around the country. Together with Columbia law students, the Bronx Defenders, and UCLA’s COVID-19 project, we have been gathering and systematically analyzing cases across the country that deal with COVID-19 and creating an online site that is searchable and will be available to advocates and researchers. It allows patterns in decision making on the part of judges, corrections officials, and public officials to be identified, compared, and analyzed in relation to factors such as geography, the nature of the crime that someone is incarcerated for, what their pre-existing health conditions are, how long their sentence has been, and other variables. 

Then, we can look at what has happened and understand what it is, in exactly the same situation, that predisposes one judge to essentially step back from exercising discretion in a way that would preserve human life as compared to another judge who really steps up to the situation. Additionally, we’re trying to use the best available resources to advocate on behalf of people who are seeking either release or better health and screening mechanisms while they’re in prison. People, once they’re released, are coming home to really difficult circumstances, so we’re also trying to understand what the needs of people are once they leave prison and what is available, both legally and socially, to support those individuals.

The research also includes gathering narratives of people who are currently incarcerated and what they are experiencing, both with COVID-19 and in prison more generally, and enabling those narratives both to identify the patterns that are cutting across facilities and also to amplify the voices and the advocacy of people who are directly affected so they can actually speak for themselves.




Is that all on one site?

This is all in process right now. There is a public Google form, an Excel spreadsheet that has all of the case data that has been analyzed thus far. That will be publicly available. For the website, a portion will be publicly available and a portion will be password protected. 

Something that has been very gratifying for me is that there are about 25 Columbia law students that have been working on this project, either volunteering, getting their pro bono credit, or doing this as a summer job. Columbia law students have been doing a lion’s share of the case analysis that has been populating this site to be available for the public.




It’s important to mention what’s happening in the world right now alongside the pandemic, which is the fight against anti-Black racism and for justice, for equality. I wanted to hear your thoughts and observations on the last month, especially from your perspective as someone who has made a career out of focusing on racial and gender biases and tackling institutional change and structural inequalities in employment, in higher education as well. 

For me personally, the last month has been wrenching and sobering, just to be re-witnessing the pattern that’s repeated over and over again and in a way that is so painful and damaging particularly to Black people, who have been living with this same pattern. 

It’s also been a time of introspection. I do work in this area and this is something I spend a lot of time on. I’ve been spending the last three years working with the Massachusetts Trial Courts to help them build their capacity to address race and bias in the Trial Court, and I've been spending the last four months pulling together a guidebook and materials. Even with all of that, I’m wondering and asking the question, “Are there ways in which I can use the position that I am in either to address these issues or support the work of organizations led by people of color to advance anti-racism? What are the ways in which I really need to step up and how do I do that in a way that doesn’t occupy the room that really needs to be respected for people who have directly experienced this kind of racism?” It’s been an introspective and sobering time.

I’ve never witnessed anything like this that I can remember: the level of public attention and reckoning and people who are paying attention who I don’t think have paid attention before. I’ve had the privilege of being part of a bunch of work with the Broadway Advocacy Coalition that has been driven by Black industry people, from actors to writers and directors. We hosted a three day forum in which over 4000 people participated. Many of them were white and were talking about things that were going on right in front of them that they didn’t see or they didn’t act on. There were over 4000 of them who took an accountability pledge, not just to learn about their own racism but to really take action. 

I’m seeing colleagues both in my own law school and in other law schools that are using the language of racism, anti-racism, systemic racism, and accountability in ways that I’ve not heard before. I’m seeing students who are really equipped to press for change in a very sophisticated and impressive way. So I feel simultaneously angry and despondent and also hopeful for conversations about really fundamental change both in the criminal justice system and in higher education and in politics. I am writing a book that grapples with the paradoxes built into efforts to move white institutions toward anti-racism.

I think the big question is going to be how we will sustain this kind of inquiry and how we will avoid cosmetic short term solutions that will just make people feel good or feel like they’re taking action. How we will enable people to understand why this is a concern that is critical for everybody. It’s critical for the health of our democracy, it’s critical for the flourishing of people in predominantly white institutions and the support of people who have been working in predominantly Black or other racial institutions. 
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I think that vocabulary is starting to emerge among the broader public. It’s been there all along, but there’s a willingness to take the first step. We’ll see what happens, but I think this is a defining moment for our democracy in so many ways. Will we be able to navigate and develop public institutions that are able to deal with this threat of the pandemic? Will we be able to remake ourselves in ways that change how decisions get made, to really include the people who have been marginalized from those decisions even though they have really affected their lives since slavery?

What gives you hope for the future?

I think the biggest thing that gives me hope is that I see really strong, committed, effective leadership coming from your generation, from my law students, from formerly incarcerated individuals who have organized in ways that really highlight both their capabilities to lead change, their knowledge, and the kind of ground truth that they bring. I think that’s the thing that gives me the most hope: seeing the kind of mobilization and leadership among the people who really need to be at the forefront of holding our institutions accountable and pushing this change forward. That makes me hopeful.

I also see an openness to accepting responsibility on the part of at least some in positions of power and influence who have never done that before. I also see the combination, which can hopefully be sustained, of really strong leadership that really pushes for and holds people who are in positions of power accountable and openness to sharing power, stepping back, making change, and then putting things on the table that just need to be addressed squarely that involve race, racism, and dysfunctional institutions that need to be rebuilt from scratch, such as the prison system, the system of mass incarceration. 

I see ideas that were treated as beyond the pale even a few years ago that are on the table now. To the extent that we are willing to face into our failures and do something to change in a sustained way, there will be hard work. There will be a lot of pushback, there will be a lot of backsliding, but I think there’s hope for much more transformational change to grow out of this period of suffering.