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Criminal Law in Crisis
Benjamin Levin
Introduction
On April 5, 2020, Michael Tyson, a 53-year old man arrested for a technical
parole-violation, became the first reported person on Rikers Island to die from
COVID-19.1 By April 20, over two-thirds of the people incarcerated in Ohio's
Mario Correctional Institution had tested positive for the novel coronavirus, and
over twenty percent of Ohio's 12,919 confirmed cases had been traced to the
state's prison system.2 By April 30, prisons or jails had been identified as the
source of eight out of ten of largest viral clusters in the United States.3
Advocates sprang to action: They called for governors to use clemency,
pardon, and furlough powers;4 they petitioned judges to release defendants
awaiting trial;5 they called on police to issue citations instead of arresting
individuals; and they implored prosecutors to drop charges or seek non-carceral
alternatives when they did prosecute as a way to reduce the risk of exposing
Associate Professor, University of Colorado Law School. For helpful comments and
conversations, thanks to Jenny Braun, Jessica Eaglin, and Joan Segal. Many thanks as well to
Francis Kailey, Quentin Morse, and the other editors of the Colorado Law Review for their
thoughtful engagement and assistance.
1 See Joshua Bates, New York's Rikers Island Jail Sees First Inmate Death From COV7ID-19, TIME
(Apr. 6, 2020), https://time.com/5816332/rikers-island-inmate-dies-coronavirus /
[https://perma.cc/4BJ9-8ZGX].
2 See Bill Chappell, 73% Of Inmates At An Ohio Prison Test Positive For Coronavirus, NPR (Apr. 20,
2020), https://www.npr.org/sections/coronavirus -live-updates /2020/04/20/838943211/73-
of-inmates-at-an-ohio-prison-test-positive-for-coronavirus [https://perma.cc/4BJ9-8ZGX].
3 See Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES (Apr. 30, 2020),
https ://www.nyfimes.com/interactive/2020/us /coronavirus -us-cases.html
[https://perma.cc/9N3V-56TZ] (permalink contains data as of Aug. 1, 2020).
4 See, e.g., Rachel Barkow, Our Leaders Have the Power to Release People in Prison. Now They Must Use
It., THE APPEAL, Mar. 27, 2020, https://theappeal.org/coronavirus-prison-commutations;
James King, A Plea to Governor Newsom: Don't Abandon Eldery Incarcerated People to Die From
COT7ID-19, THE APPEAL (Mar. 30, 2020), https://theappeal.org/gavin-newsom-california-
prisons-coronavirus-covid-19/ [https://perma.cc/SZA4-A3QK].
5 See, e.g., Disability Rights Mont. v. Mont. Jud. Dists. 1-22, OP 20-0189, 2020 WL 1867123, at
*1 (Mont. Apr. 14, 2020); Comm. for Pub. Counsel Servs. v. Chief Justice of Trial Court, SJC-
12926, 2020 WL 2027846 (Mass. Apr. 28, 2020); Deborah Becker, Mass. High Court Rules Some
Prisoners Will Be Eligible For Release Due To COVID-19, WBUR-FM (Apr. 3, 2020),
https ://www.wbur.org/news /2020/04/03/s jc-prisoners-emergency-petition-ruling
[https://perma.cc/7LL7-637T].
6 See, e.g., Police Responses to Covid-19, BRENNAN CTR. (Mar. 27, 2020),
https ://www.brennancenter.org/our-work/research-reports /police-responses-covid-19
[https://perma.cc/U4WJ-RXD7].](ViewImageLocal?handle=hein.journals/uvsyocd92&div=1&collection=&method=preview&ext=.png&size=3)
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