The COVID-19 pandemic has exposed inequities throughout our economic, political, and social systems. Perhaps nowhere is this injustice more pronounced than in our jails, prisons, and detention centres.

As the number of inmates and detained persons infected with COVID-19 across Canada continues to rise, it is vital that we reconsider our society’s attitude towards incarceration as a tool for solving complex social problems. Instead of relying on jails and prisons to rehabilitate members of our society who engage in behaviour deemed criminal, we must create positive structures that address causative factors in the community. We need decarceration — mass releases — rather than imprisonment and isolation.

In ordinary times, our legal system is quick to place behind bars individuals who are viewed as harmful to others or who are deemed likely to engage in behaviour that is viewed as undesirable. This tactic of incarceration does not require that an individual even be convicted of a crime — in 2017–2018, twice as many individuals were in pre-trial detention than in detention for having been convicted of a criminal offence. Indigenous persons are grossly overrepresented in the prison system, accounting for approximately 30 per cent of new intakes to prisons while making up only 4 per cent of Canada’s population. Mental health challenges are rampant, with studies showing that the majority of inmates have mental disorders. Our society suffers from a lack of creativity — and ultimately a lack of humanity — in responding to issues of criminality.

Where the rest of the world is ordered to engage in social distancing and practise intensive hygiene, prisoners are denied the capacity to do either.

In the context of COVID-19, this inhumanity is even more pronounced. Where the rest of the world is ordered to engage in social distancing and practise intensive hygiene, prisoners are denied the capacity to do either. Living conditions are poor. Prisoners are often double-bunked and tightly confined, with up to 20 individuals living in a 20 ft by 50 ft unit. Appropriate physical distancing is mathematically impossible in many prisons given this density. Further, droplets can travel not just horizontally but downwards — for instance, over the edges of a bunk bed.

Most hygiene supplies are not provided, and hand sanitizer is not permitted given its alcohol content, so inmates are left to purchase items like soap and shampoo at their own expense from the canteen. Many prisoners are unable to do even that. On top of this, prisoners also age prematurely and have markedly worse health than the general population. It is little wonder, given this, that 120 inmates became infected at B.C.’s Mission Institution and that 54 tested positive at Quebec’s Joliette Institution. Prisons are petri dishes.

The Canadian Charter of Rights and Freedoms offers at least two important guarantees in this context: the right to security of the person (Section 7) and the right to be free from cruel and unusual treatment or punishment (Section 12). When prison conditions are such that the infection of one inmate or guard with COVID-19 all but guarantees an outbreak, it is impossible for inmates to enjoy such protections. Inmates live in constant fear for their lives. The provincial governments and Canada have clear powers to save prisoners’ lives through release.

One of the major difficulties in addressing the problem of over-incarceration is the lack of alternatives available to legal system participants who want to reduce prison numbers. For instance, if a person accused of a crime has a drug use problem, the solution is to attempt to find them a placement at a treatment facility (usually privately run), financial and social support, and a safe and legal supply, rather than incarcerate them. Should adequate treatment be found, this person can stay out of jail both in the immediate instance and in the long term.

However, such placements are limited even at the best of times. Instead, persons who should otherwise be treated are left to languish in prison. Upon release, they continue to suffer from the same ills that landed them there in the first place, and the cycle continues. COVID-19 has only made this problem more obvious, as treatment facilities have largely ceased taking new clients. A reallocation of resources is needed to prioritize rehabilitation rather than incarceration.

The problem of COVID-19 and prisons is also a problem of colonialism.

Finally, and most importantly, the ticking time bomb of COVID-19 inside carceral facilities disproportionately affects Indigenous people, by virtue of their gross overrepresentation in prisons and jails. Further, given well-documented health inequalities in Canada, Indigenous people are also more likely to be more physically impacted by COVID-19 symptoms. Thus, the problem of COVID-19 and prisons is also a problem of colonialism. We must keep in mind the wounds of history in considering it — particularly those wounds that still bleed. It is not too much to draw a parallel between the abhorrent historical practice of giving smallpox blankets to Indigenous people and the present situation in noting that once again Indigenous people bear the brunt of a colonial violence that seeks only to dispossess and invalidate them.

We must become a society of compassion rather than vengeance. What might this look like? In the short term, the legal system has furnished us with various tools to reduce exposure to COVID-19: the use of conditional pardons, early releases, and temporary absences would significantly decrease prison populations. Mass release of prisoners in the face of the pandemic must be the first step towards large-scale reform.

Social services are underresourced and poorly integrated with the legal system, limiting the ability of well-intentioned lawyers and judges to adequately connect individuals who have mental health challenges and struggles with addiction with support and treatment. Investing in such support systems is a necessity. Instead of investing hundreds of millions in police budgets, we should instead shift those resources to social services such as safe supply and drug treatment counselling, among others.

Such a change requires a radical rethinking of how we choose to treat those who cause harm to others. It requires moving past violent solutions of forcible confinement and towards compassionate solutions of partnership and care.

Joey Doyle is a criminal defence lawyer, operating a solo law practice based in Vancouver and around the Lower Mainland. He is a founding Steering Committee member of the Law Union of British Columbia, an organization committed to using the law for social change. With thanks to Claire Kanigan for suggestions and research.