Internet Explorer 11 is not supported

For optimal browsing, we recommend Chrome, Firefox or Safari browsers.

'No One's Sentenced to Die in a Pandemic': Debating Prisoner Release

Thousands of inmates are infected with the coronavirus and dozens have already died. Some governors have released prisoners for public health reasons, but there's always a risk they'll reoffend.

Overcrowding in some prison facilities has exacerbated coronavirus infections among inmates. (Gary Friedman/TNS)
Earlier this month, Cook County Jail in Chicago was home to the nation’s largest outbreak of coronavirus cases. It’s since been surpassed by Marion Correctional Institute in Ohio, which has more than 2,100 cases, including three-quarters of its inmate population.

It’s a problem all over the country. In Arkansas, prisoners accounted for 262 of the 304 new coronavirus cases reported throughout the state on Tuesday. More than 4,000 prisoners are infected at more than 50 prisons in Florida. More than four dozen federal and state prisoners have died.

The risk from the disease spreading through jails, prisons and immigration detention centers has led to hunger strikes, prison protests and numerous lawsuits. It’s also touched off one of the thorniest policy debates of the coronavirus crisis — whether releasing inmates early (or not incarcerating them to begin with) is necessary to protect public health, or whether early releases pose too great a risk to society.

Already, dozens of inmates released in response to outbreaks have reoffended, including at least one alleged case of murder in Florida. A half-dozen prosecutors in New York City — where at least 50 released prisoners have been arrested again for committing new crimes — warned that “across-the-board” release policies “pose a high risk of public safety.” One Iowa prosecutor took to Facebook to complain that defense attorneys were employing the pandemic as a “get out of jail free” card.

“The folks who are cheering this on the most are people who have been cheering on inmate release laws for 10 years,” said Michael Rushford, president of the Criminal Justice Legal Foundation, a nonprofit group in Sacramento that supports the rights of crime victims.

But, as with everything else, policymakers recognize that the coronavirus presents unique challenges when it comes to prison health. From California to New Jersey, hundreds of prisoners have been released early due to health concerns. 

“No one’s sentenced to die in a pandemic, even if their crime and conviction is a serious one,” said Nicole D. Porter, advocacy director for the Sentencing Project, a progressive group that promotes decarceration.

With the disease jumping from prisoners to correctional officers, coronavirus is likely to exacerbate problems with overcrowding. There may not be enough correctional officers to maintain safety. At Rikers Island in New York, 300 inmates have been infected, but more than 400 staffers have tested positive. Over the weekend, both the head warden and the medical director at Raymond Laborde Correctional Center in Louisiana died.

“The virus doesn’t care if you’re an officer or a prisoner,” said David Fathi, director of the ACLU National Prison Project. “If a prisoner has it today, the officers will have it tomorrow and the officer’s family will have it the day after that.”

Prisons Are Petri Dishes

The reason coronavirus is spreading rapidly through lockups is obvious. Prisons and jails are examples of congregate living — places where people eat, sleep and sometimes work together. “One of the best ways of viewing them is as landlocked cruise ships, except they’re worse,” said Marc Stern, an expert on prison health at the University of Washington.

Disease outbreaks in prisons are common. They are at the center of an ongoing outbreak of hepatitis A. Inmates make up 1 percent of the U.S. population, but account for 35 percent of the nation’s caseload of hepatitis C. Prison populations are rapidly aging, with high counts of heart disease and diabetes. “You have on the one hand an environment where the spread (of coronavirus) is going to be much more rapid because of the congregate living environment, and on the other hand a population that’s seriously ill and dying,” Fathi said.

Prisons afford no privacy. Conditions are rarely sanitary and there’s no abundance of hand sanitizer or even ready access to soap. Prisoners, leaving aside those in solitary confinement, can’t practice social distancing. Where they can, facilities are trying to put inmates into single cells, but not every place has the space.

It’s part of the routine intake process in prisons and jails to check for flu, scabies and other communicable diseases. But prisons aren’t set up to check and then isolate inmates by the hundreds. Prisoners who become gravely ill consume valuable medical resources as they’re transferred to hospitals for intensive care. 

“Normally, infection management is limited to a small number of people,” said Donna Strugar-Fritsch, a prison health-care consultant in California.

'Imminent Danger' to Guards

The already-high incidence of coronavirus has corrections staff concerned. Unions have filed grievances and “imminent danger” reports due to workplace safety and health issues. Seven staff members, along with 47 inmates, have tested positive at Tomoka Correctional Institution in Florida. “Obviously, the facility is kind of like a gated community on its own,” James Baiardi, president of the state correctional officers chapter of the Police Benevolent Association, told the Daytona Beach News-Journal. “Staff and inmates are in close quarters together. It’s a bad situation in that these officers have contracted the virus and we are concerned.”

Already, a dozen states have prison staff vacancy rates above 20 percent. Vacancy rates at some facilities are twice that high. As more guards get sick and even die, replacing them will be no easy feat, especially if prisons and jails are viewed as death traps.

The same goes for the medical staff treating prisoners, who are always in short supply. 

“We don’t hear a lot about how operations will be carried out when there’s no staff,” Strugar-Fritsch said. “Anybody that feels like stepping into the fray to work, to volunteer their services or come out of retirement, the last place they’re going to go is a prison.”

Is It Safe to Release?

When it comes to releasing prisoners, there are many decision points. Inmates have been released by governors, parole boards, judges and sheriffs. The criteria vary, but typically the likeliest candidates are those whose crimes were nonviolent, whose sentences are running out and who, perhaps because of age, present the least risk of reoffending. 

Arkansas Gov. Asa Hutchinson, a former federal prosecutor, has asked the state parole board and Department of Corrections to identify and review nonviolent offenders due for release within the next six months. “These individuals will be carefully evaluated and considered for release due to the public health emergency,” Hutchinson announced on Sunday.

The federal stimulus package known as the CARES Act allows inmates to be placed under home confinement even if they have more than six months remaining on their sentences, the usual standard. The federal prison release program has been implemented in fits and starts, with the U.S. Department of Justice altering its guidance. Last week, prosecutors said that Dean Skelos, the former New York Senate majority leader convicted in 2018 on corruption charges, would be cleared for release into home custody. On Monday, the U.S. attorney’s office said the release of the 72-year-old Skelos, who is positive for coronavirus, now “appears unlikely.”

Kentucky Gov. Andy Beshear commuted the sentences of 186 inmates and identified 743 others within six months of serving out their sentences who are being screened for release. Maryland Gov. Larry Hogan has signed an order granting early release to more than 700 prisoners. California Gov. Gavin Newsom has halted prison intakes from county jails and his administration is speeding the release of up to 3,500 prisoners.

Nationwide, one in four new admissions to state prisons are due to technical infractions, such as missing appointments with parole officers, according to the Council of State Governments. Last month, New York Gov. Andrew Cuomo ordered the release of 1,100 parole violators.

Most governors have resisted broad release programs. In Texas, Gov. Greg Abbott has blocked judges and local officials from releasing inmates who are unable to afford bail, saying that “releasing dangerous criminals in the streets is not the solution.”

“It’s a problem anytime you release known criminals early,” said Rushford, of the Criminal Justice Legal Foundation. “Here in our state, I’m sure they’re laughing on their way out the door.”

Rushford says it’s naïve to expect criminals to shelter at home, since “criminals by their nature don’t follow the rules.” There’s already a “dumping” dispute between county officials in California over an infected prisoner who was instructed to self-isolate on release but ended up living at an aunt’s mobile home park more than 500 miles away.

Balancing an Entirely New Concern

There may be a public safety risk involved in releasing prisoners, but there’s also a safety risk due to the coronavirus, said the ACLU’s Fathi. Already, the coronavirus death toll in the U.S. is triple the annual number of murders, he noted. “If we’re thinking about public safety, COVID-19 is arguably a greater threat to public safety than homicides,” he said.

He warned that the combination of close living quarters and prisoners with underlying conditions will lead to a “very high death toll in prisons” absent significant numbers of releases. The U.S. Supreme Court has upheld that prisoners are entitled to health care, no matter their crime. “The immediate goal is managing down prison populations during this pandemic so social distancing can be managed better and for the people who are left behind, their health can be maintained as well as possible,” said the Sentencing Project’s Porter.

The coronavirus presents a novel challenge to policymakers, suggested Stern, the University of Washington public health professor. Normally, judges, prosecutors and other actors have to make decisions about incarceration and release based solely on public safety. Does a prisoner pose a risk of violence? Are they a flight risk?

Now, Stern, said, there has to be a third factor — the threat to public health if they aren’t released.

“If we don’t manage the prisons properly,” he said, “we’re posing a risk to the public health outside of the prison.”

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
From Our Partners