A Call to Collective Action for Nationwide Reform. May 12  · 14 min read

“Not everything that is faced can be changed, but nothing can be changed until it is faced.”

James Baldwin

By: Katherine Katcher and Damali Robertson, Root & Rebound

Patrick Jones and Andrea Circle Bear could still be alive today. In a system of justice, one worthy of such a name, they would be. But in the United States, we do not have such a system.

Patrick, a 49-year-old Black man from Temple, Texas, was the first person in federal prison in the United States to die of COVID-19. In 2007, he was sentenced to 27 years in federal prison for a nonviolent drug offense: possession of 19 grams of crack and 21 grams of powder cocaine. Patrick died on March 28th — a month after the judge denied his petition for early release. Despite his sentence being one of the harshest under the racially unjust Anti-Drug Abuse Act of 1986, Patrick had also been denied commutation of his sentence by President Obama, a decision that made so little sense that his own attorney believed his application never got read (The Marshall Project, 2020).

Andrea Circle Bear, a 30-year-old Native American woman of the Cheyenne River Sioux Tribe from Eagle Butte, South Dakota, had received a two-year sentence on a minor, nonviolent drug charge. Andrea was pregnant when she died. Her baby girl survived after Andrea gave birth via cesarean section on April 1st, while on a ventilator. Andrea died a month after Patrick, on April 28, 2020, from COVID-19. She was the first incarcerated woman to die of COVID-19 in federal custody.

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Today, the greatest global pandemic of our lifetimes is exacerbating another public health crisis, mass incarceration — a system that targets and harms low-income people and people of color. With the disparities that have always existed made more evident by the virus, the need for change has never been more urgent.

When we demand change at this moment, it’s not enough to talk about how Patrick, Andrea, and the thousands of people who are sick and dying inside prisons and jails received their sentences, got to their facilities, and how their particular deaths could have been prevented. As we seek reform, we must conduct an analysis of how our current situation is entrenched in the full historical arc of this nation and its criminal legal system. We must face the historical origins of modern-day policing, prosecution, sentencing, and incarceration to understand the ways the United States has harmed low-income communities and communities of color.

Only from that place of knowledge can we demand change as our mass incarceration system collides with the deadliest pandemic in modern history and the consequences of our two-tiered system of “justice” result in life for people with means and privilege and death for people without.

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Before COVID-19 began to spread through jails and prisons, Patrick submitted a petition for early release under the First Step Act, a federal relief package passed in 2019 that allowed for early release of some people in prisons who were convicted of drug offenses.

Patrick’s attorney pleaded with the judge to evaluate the harsh and unjust penalty that had been imposed under the Anti-Drug Abuse Act of 1986, which increased sentences for crack cocaine offenses. The attorney explained in her October 2019 petition that the judge should consider evaluating Patrick as a person with mitigating circumstances.

Patrick had a tough and unstable childhood. He was only six years old when his grandmother, with whom he lived, died. After her death, he was shuttled between relatives in his formative years. He began engaging in petty crime when he was 16. As a teenager, he began selling drugs to survive in an economy that offered him no viable options. This led to a record of burglary and lifelong involvement in the criminal legal system, including a warrant out for his arrest because he’d violated his parole conditions.

As part of his petition for early release, family members pointed out that prior to his conviction he had been legally employed and supporting himself and his family — his son and his stepdaughter — as a handyman and landscaper. His children believe that while there were no signs of his involvement in drug sales at home, he engaged in these activities to support them. He loved to cook and his family affectionately called him “Chop, Chop.” In fact, Patrick had dreams of getting out and opening his own restaurant in Texas.

In prison, Patrick worked to better himself. He studied for his GED and took classes including “Five Secrets to Finding a Job” and “Ticket to the Future.”

Patrick wrote to the judge in his 2019 appeal, saying, “83582–1800 (his prisoner ID number) has no meaning. It is just a number to be forgotten in time. Mr. Patrick Estell Jones is a very good person. Caring, hard-working, free and clean of drugs and a lot smarter now, with a balanced outlook on life” (The Marshall Project, 2020).

The judge denied his petition on Feb. 26th 2020, ruling, “Jones is a career offender with multiple prior offenses and a history of recidivating each time he is placed on parole” (The Marshall Project, 2020).

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Andrea Circle Bear of Eagle Butte, South Dakota was a pregnant mother of five children when she was sentenced in January of 2020 to more than 2 years in prison for a nonviolent crime. Her crime: using a residence on the Cheyenne River Indian Reservation to sell drugs back in 2018.

During her trial, Andrea admitted that she had sold $850 worth of methamphetamine to a couple of buyers who were later revealed to be confidential informants, according to court documents. She had a history of substance abuse and was ordered to receive drug treatment while incarcerated. Andrea was also a devoted mother to her children, her grandmother Clare LeBeau said. “She was going to school with a full-time job, but she couldn’t work child care out so she let her job go and her school go and to become a full-time mom,” LeBeau said. “She was a real good cook. She cooked for her kids and kept them clean and really loved them. She made a mistake and she regretted it and she knew she’d have to pay the consequences” (Vice, 2020).

While the system actors involved had the discretion to show mercy to Andrea and her baby, at every turn, they chose not to do so. The judge in her case had the complete discretion to suspend her sentence, given her pregnancy, or to order her to serve time at home; the prosecutor had the discretion to drop or lessen the charges; the Bureau of Prisons had the discretion to allow her to serve her sentence at home, for the sake of her health and her baby’s. However, none of this happened (New York Times, 2020). Instead, these system actors made the decision that punishment for a mother selling $850 of drugs to support her family warranted risking her life and the life of her baby.

Andrea was in the second trimester of her pregnancy, a vulnerable time for her and her baby, when she was moved in the midst of the Coronavirus pandemic in March from a jail in South Dakota to Federal Medical Center Carswell, a federal prison in Fort Worth, Texas. Andrea’s pregnancy was high-risk, having delivered a number of her five children (ages 2–10) via cesarean. She’d previously given birth at a hospital in Pierre, SD, and was receiving prenatal care there before she was sent to the Winner City jail (Vice, 2020). Her grandmother reported that Andrea told U.S. Marshals she was high-risk and concerned about moving away from the doctors who had been providing her and her baby with prenatal care. But she was moved nonetheless in the midst of the contagion. Andrea told her grandmother that during the trip, she was forced to stand outside on a cold runway with no jacket. She started to feel sick a few days later, and doctors first suspected a case of pneumonia (Vice, 2020).

Andrea was taken to a hospital on March 28 due to concerns about her pregnancy, and released back to prison the same day. By March 31, she developed a fever and a severe cough and returned to the hospital for treatment. She was placed on a ventilator, and gave birth to her daughter the next day by cesarean section. Almost a month later, she died (New York Times, 2020). Before she died, Andrea picked out a name for her daughter — Elyciah Elizabeth Ann High Bear (Vice, 2020).

Patrick and Andrea received death sentences because of the COVID-19 pandemic and because no one with power used their discretion to do the right thing for them. There are thousands like them who remain behind bars, for whom the Coronavirus will mean death and grave bodily harm if we do not demand radical change now.

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The United States currently incarcerates 2.3 million people. While we have 5% of the world’s population, we hold 25% of the world’s incarcerated people.

Eight of the top ten Coronavirus hotspots in the United States are connected to prisons and jails (Reason, 2020). The consequences of a pandemic that spreads without mercy and a system that refuses to show mercy to people behind bars are coming to light as incarcerated people are falling ill and dying at higher rates than people who are free.

These outbreaks are happening in federal prisons, state prisons, and county jails. In fact:

• The largest COVID-19 outbreak in the country is at the Marion Correctional Institution in Marion, Ohio, where the virus has infected more than 80 percent of the prison’s population: 2,197 people (Reason, 2020).
• In Chicago, Cook County Jail houses more than 4,000 people. As of April 30th, nearly 500 detained people and more than 300 correctional officers have tested positive. Seven people have died: six incarcerated people and one guard (NPR — Chicago, 2020).
• In New York City, Rikers Island houses nearly 4,000 people. To date, 378 people incarcerated have tested positive for COVID-19. Rikers Island chief physician, Dr. Ross MacDonald, has described the situation as, “A public health disaster unfolding before our eyes” (The Guardian, 2020).
• Los Angeles County Jails house over 11,000 people across various facilities. Since the pandemic, 115 incarcerated people and 70 correctional staff have tested positive (Los Angeles County Sheriff’s Department, 2020).
• Of the 153,000 people being held in federal custody, the Bureau of Prisons has only tested 2,700 and 70 percent have come back positive. We know there are many more cases among people who have not been tested. At least 40 people in federal prisons have died of COVID-19 since March (New York Times, 2020).
• 70% of the people incarcerated at Lompoc federal prison in California have tested positive for COVID-19. The number of people infected at Lompoc sits at 792, making it the largest federal penitentiary outbreak in the nation. (Los Angeles Times, 2020).

The ACLU estimates that, because of our current rates of incarceration, the national death toll will be double what the federal government estimates because those populations and the connections they have to the community have not been considered. The ACLU’s newly released epidemiological models estimate that COVID-19 will kill 100,000 more people than current projections — specifically, 23,000 people in jail and 76,000 in the broader community connected to these facilities (ACLU, 2020).

We know that families and communities of color and low-income people will feel the harms of this pandemic the most as it sweeps through jails and prisons. Racial and poverty disparities run throughout the U.S. criminal legal system: from the school-to-prison pipeline, over-policing, pre-trial issues, sentencing disparities, onerous parole and probation restrictions, and the collateral consequences of criminal convictions.

At this moment, it is important to understand how we got here — how one public health crisis maps onto another, creating an even broader system of injustice than ever imagined.

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The legacy of colonization and genocide of Indigenous people dates back to 1492, when Christopher Columbus arrived in the U.S. After the brutal American-Indian Wars, indigenous populations declined sharply from 5–15 million people to just under 250,000 people (History.com, 2018). When enslavement began in 1619, the histories of brutality and domination ran parallel and continue to manifest in today’s criminal legal system data.

According to the CDC, Native Americans are more likely to be killed by law enforcement than any other group (CNN, 2017). “Native American men are also four times more likely to go to prison than White American men and Native American women are six times more likely to go to prison compared to their white counterparts” (Roosevelt Institute, Cornell University, 2017). In fact, Andrea Circle Bear was not the first in her family to be incarcerated for a drug crime or die incarcerated. Her sister-in-law, Sarah Lee Circle Bear, also died in jail while pregnant in 2015, after complaining of severe abdominal pain but being ignored (Vice, 2020). The mother of two boys, she died a preventable death 5 years before her sister was subject to a similar tragedy.

Native American, Black, and Latinx communities in this country all have histories rooted in oppression that have become the systems of injustice and mass incarceration we see today.

African-American adults are 5.9 times as likely to be incarcerated as whites, and Latinx people are 3.1 times as likely (The Sentencing Project, 2018). As of 2001, one of every three Black boys born in that year could expect to go to prison in his lifetime, as could one of every six Latino boys — compared to one of every seventeen white boys (The Sentencing Project, 2018).

The criminal legal system in this country was built in the Jim Crow era to preserve racial hierarchy and for much of the early 20th century that was its primary function (Washington Post, 2018). While the Thirteenth Amendment supposedly abolished slavery, it made one glaring exception: slavery remained legal and sanctioned as punishment for a crime. While Black people were “freed,” it remained that, if they broke the law, they became prisoners, subject to legal slavery through a scheme called “convict leasing” where Black prisoners were sold to the highest private bidder for farming, railroad construction, mining, and logging.

To build this enslaved workforce, policymakers invented offenses that, to this day, define what is “criminal” and what is not: vagrancy, loitering, being a group of Black people out after dark, seeking employment without a note from a former enslaver, among countless others (Why American Prisons Owe Their Cruelty to Slavery, 2019). In 1861, the Supreme Court of Alabama upheld convict leasing by defining enslaved Black people as sub-human. The Court held that enslaved Black people were “capable of committing crimes,” and in that capacity were “regarded as persons” — but in almost every other sense they were “incapable of performing civil acts” and considered “things, not persons” (Why American Prisons Owe Their Cruelty to Slavery, 2019).

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During the Civil Rights Movements of the 1950s and 1960s, Black people and people of color made enormous progress. Then came the “War on Drugs.” The “War on Drugs” was a war on people — “a means to brand them as criminals and felons and then relegating them to a permanent second-class status for life” (Ten Years After the New Jim Crow, 2020). After Nixon, Presidents Reagan, Bush, Clinton, and Bush all doubled down with “tough on crime” policies and harsh sentencing laws disproportionately targeting Black, Brown, and Indigenous communities.

In a forty-year period, from 1973 to 2009, the state and federal prison populations rose from 200,000 to 1.5 million. The Anti-Drug Abuse Act of 1986, for example, included far more severe punishment for distribution of crack (associated with Black, Brown, and Indigenous people) than powder cocaine (associated with whites). Today, “nearly 80% of people in federal prison and almost 60% of people in state prison for drug offenses are Black or Latino” (Drug Policy Alliance, 2018).

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Today, Black people are 3.7 times as likely to be arrested for marijuana possession as white people, despite comparable rates of usage, and in all comprise 27% of those arrested in the U.S., despite making up 14% of the population (Sentencing Project, 2018).

Once arrested, an overwhelming majority of people are faced with the prospect of sitting in jail for an often indefinite period with little to no communication from or with their defense team because of this country’s woefully underfunded public defense system. Some people wait years before their case is tried — as in the tragic, but by no means rare, case of Kalief Browder — or make a guilty plea with the promise of a swift sentencing (New Yorker, 2015). Most choose the latter option, as nearly 90% of criminal convictions result from guilty pleas (The Outline, 2017).

The structure of this system allows wealthy people, like Harvey Weinstein, to post bail and prepare for their trials from the comfort of their homes with the best legal team money can buy, while the average person faces charges in a crowded jail cell. Many accept a guilty plea because they cannot physically, emotionally, or financially afford to continue to languish in jail, away from their families simply because they can’t afford to pay bail.

When poor people and people of color do make the decision to go to trial, they face many more points where the odds are stacked against them in favor of a lengthy sentence. Under the federal laws instituted during the War on Drugs, Black, Brown and Indigenous defendants were charged with offenses that carry mandatory minimum sentences twice as often as their white counterparts accused of similar crimes (crack v. powder cocaine) and are also far more likely to be charged as “habitual offenders” under similar circumstances (Ibid).

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The horrifying and utterly preventable deaths of Patrick and Andrea at the hands of our system of mass incarceration bring us to the consequences we are seeing in 2020 — never before seen or imagined.

For the last 10–15 years, we as a country have experienced a growing bi-partisan move towards decarceration. However, this pandemic is a wake-up call that the change we are looking for cannot wait.

There is irrefutable evidence that our criminal legal system has been, from its inception, weaponized against our own people to uphold racial hierarchy and order and to create a workforce of enslaved prisoners. This system was held up and strengthened throughout the twentieth century. The life and death implications of this pandemic mean that we must demand change now. The current reality we are living in requires an urgent and renewed effort to create a new system of justice.

In this moment of life and death, we must demand a “system of justice” that would be worthy of such a name.

We believe that despite the unadulterated meanness that drove the creation of this country’s justice infrastructure, despite entrenched racism, classism, bias, and prejudice woven into our system, things can change. But we must reckon with the past in order to create a better future. As James Baldwin said, “Not everything that is faced can be changed, but nothing can be changed until it is faced.”

Only by facing the truth and a reckoning with the past can we demand justice, and now is that time. We must reflect and re-imagine what kind of system we could build that would truly live up to that title. And we have a long way to go. Over the next few months, Root & Rebound and our partners will write a series of op-eds on this topic of rewriting, rebuilding, and recreating justice. We hope you will join us.

About the Authors and the Demanding Justice Op-Ed Series:

Katherine Katcher is the Founder and Executive Director of Root & Rebound, and Damali Robertson its Deputy Director of Strategic Partnerships. At Root & Rebound, we are committed to creating a more just and restorative society. Our mission is to restore power and resources to the families and communities most harmed by mass incarceration through legal advocacy, public education, policy reform, and litigation — a model rooted in the needs and expertise of people who are directly impacted.

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