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Statement

Letter to Governors: Use Your Executive Authority to Release Vulnerable People From Incarceration Who Pose No Threat to Public Safety

The Brennan Center submitted a letter to the Governors of the fifty states urging them to use their Executive Authority as Governor to release vulnerable individuals from incarceration who pose no risk to public safety for the duration of the Covid-19 pandemic.

Published: April 3, 2020

Re: Governors’ Executive Authority to Release Vulnerable People Who Pose No Risk to Public Safety From Incarceration

April 6, 2020
 

To the Honor­able Governors of the fifty States:

We recog­nize that these are unpre­ced­en­ted times and that all of you are at the front lines deal­ing with the greatest public health crisis of our gener­a­tion. As of today, the United States has repor­ted that over 200,000 people have tested posit­ive for Covid-19, with over 4,000 deaths nation­wide. foot­note1_12mp8uy 1 COVID-19 Map: Coronavirus COVID-19 Global Cases,” Center for Systems Science and Engin­eer­ing (CSSE) at Johns Hopkins Univer­sity, last accessed April 1, 2020, https://coronavirus.jhu.edu/map.html. In fact, the United States currently has the highest number of repor­ted Covid-19 infec­tions in the world, with many cases still undetec­ted. Based on our current inab­il­ity to treat this novel virus and its extremely conta­gious nature, state and local lead­ers across the nation have made diffi­cult policy decisions to protect the public to the best of their abil­ity: issu­ing stay-at-home and shel­ter-in-place orders, clos­ing doors to non-essen­tial busi­nesses, and provid­ing guid­ance about social distan­cing — all in the interest of public safety.

However, the almost 2 million people behind bars at the county and state level, plus the thou­sands of employ­ees who work in correc­tional insti­tu­tions, face an even greater risk of illness and death than the general public. We write today to urge you to use your full author­ity as Governors to release as many people as possible from incar­cer­a­tion, provided they do not pose seri­ous public safety threats, for the dura­tion of the pandemic. This effort should focus on people who are espe­cially vulner­able to infec­tion. Specific­ally, we recom­mend you take the follow­ing steps, which we explain in depth below:

  • Make full use of your clem­ency author­ity to commute the sentences of vulner­able people to time served, allow­ing their imme­di­ate release, or fash­ion other appro­pri­ate relief;
  • Expand your States’ “good time credit” or equi­val­ent programs to reduce over­all incar­cer­a­tion;
  • Work with state prosec­utors to keep people who have been convicted of crimes, but not yet sentenced, out of prison for the dura­tion of this health crisis; and
  • Take steps to limit the damaging impact of crim­inal justice debt, includ­ing but not limited to court fees and fines.

The Need for Swift Action

The United States leads the world in incar­cer­a­tion. With over 5,000 jails and pris­ons across the coun­try, those in our correc­tional facil­it­ies suffer cramped and unsan­it­ary condi­tions, increas­ing the spread of conta­gious diseases behind bars. As of 2017, there were roughly 170,000 people age 55 or older serving time in the nation’s pris­ons. foot­note2_yo7b5la 2 Jennifer Bron­son and E. Ann Carson, Pris­on­ers in 2017, Bureau of Justice Stat­ist­ics, 2019, 17, at tbl. 8, https://www.bjs.gov/index.cfm?ty=pbde­tail&iid=6546.  Accord­ing to the Centers for Disease Control, the novel coronavirus presents a far greater threat to older popu­la­tions, and “older adults, 65 years and older, are at higher risk for severe illness.” foot­note3_a5bg­zk9 3 Centers for Disease Control & Preven­tion, “Coronavirus Disease 2019: Older Adults,” accessed April 1, 2020, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precau­tions/older-adults.html. Roughly 40,000 imprisoned people fit into that category. foot­note4_zl3o­deg 4 Bron­son and Carson, 17, at tbl.8.

Unfor­tu­nately, behind correc­tional walls, social distan­cing is not an option and hand sanit­izer is, in many cases, a prohib­ited item. foot­note5_7dng7jc 5 Keri Blakinger and Beth Schwartza­p­fel, “When Purell is Contra­band, How Do You Contain Coronavirus?,” The Marshall Project, March 6, 2020, https://www.them­arshall­pro­ject.org/2020/03/06/when-purell-is-contra­band-how-do-you-contain-coronavirus. Worse, incar­cer­ated people often live in dorm­it­ory-style rooms with dozens of beds placed only a feet apart, and share cells with one toilet, sink, and soap (if they have access to it). foot­note6_rywyg43 6 See Lauren-Brooke Eisen, “How Coronavirus Could Affect U.S. Jails and Pris­ons,” Bren­nan Center for Justice, March 13, 2020, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/how-coronavirus-could-affect-us-jails-and-pris­ons; Nath­alie Baptiste, “Correc­tional Facil­it­ies Are the Perfect Incub­at­ors for the Coronavirus,” Mother Jones, March 6, 2020, https://www.mother­jones.com/polit­ics/2020/03/correc­tional-facil­it­ies-are-the-perfect-incub­at­ors-for-the-coronavirus/. Cramped in close quar­ters, our nation’s correc­tional facil­it­ies are essen­tially petri dishes for disease trans­mis­sion. These condi­tions present grave dangers to both incar­cer­ated people and the public servants who work in the facil­it­ies as guards, coun­selors, and medical staff.

Pris­ons and jails nation­wide are already exper­i­en­cing outbreaks of Covid-19. In Chica­go’s Cook County Jail, the number of posit­ive Covid-19 cases tripled from 33 to 134 within the span of 7 days. One of the people that contrac­ted the virus described the jail as “Disney­land for coronavirus.” foot­note7_ssqopkq 7 Sam Kelly, “134 Inmates at Cook County Jail Confirmed Posit­ive for COVID-19,” Chicago Sun Times, March 30, 2020), https://chicago.suntimes.com/coronavirus/2020/3/29/21199171/cook-county-jail-coronavirus-posit­ive-134-cases-covid-19. Across the New York City jail system, 231 incar­cer­ated people, 114 correc­tional officers, and 23 health care work­ers tested posit­ive. foot­note8_brlh­muh 8 For the 231 currently incar­cer­ated people who tested posit­ive, see “COVID-19 Infec­tion Track­ing in NYC Jails,” The Legal Aid Soci­ety, accessed April 3, 2020, https://www.legalaid­nyc.org/covid-19-infec­tion-track­ing-in-nyc-jails/; for the 114 correc­tional officers and 23 health care work­ers who tested posit­ive, see Jan Ransom and Alan Feuer, “‘We’re Left for Dead’: Fears of Virus Cata­strophe at Rikers Jail,” New York Times, March 30, 2020, https://www.nytimes.com/2020/03/30/nyre­gion/coronavirus-rikers-nyc-jail.html. In Michigan, diagnosed cases are rising sharply, jump­ing from 80 to 158 over the course of a few days. foot­note9_c24045w 9 Compare Emma Nicolas, “How Michigan’s Prison System is Address­ing a Rising COVID-19 Case Count,” WZZM13, March 30, 2020, https://www.wzzm13.com/article/news/health/coronavirus/how-michigans-prison-system-is-address­ing-a-rising-covid-19-case-count/69–3da0144d-7571–49e5–81b6-af89815ce­fa7 (noting 80 cases); Michigan Depart­ment of Correc­tions, “MDOC Response to Coronavirus (COVID-19) and Prevent­at­ive Meas­ures,” Medium, March 12, 2020 (last updated Apr. 2, 2020), https://medium.com/@Michig­an­DOC/mdoc-takes-steps-to-prevent-spread-of-coronavirus-covid-19–250f43144337.

Early Steps Toward Relief

Already, some state lead­ers have acted to prevent the spread of Covid-19 in their correc­tional systems. For example, in Illinois, Governor J.B. Pritzker issued an exec­ut­ive order stop­ping the Illinois Depart­ment of Correc­tions from admit­ting new people into prison. foot­note10_7lnl0hk 10 Emmanuel Camarillo, “Illinois Pris­ons Halt Admis­sions From County Jails to Slow Spread of Coronavirus,” Chicago Sun Times, March 26, 2020, https://chicago.suntimes.com/2020/3/26/21196581/illinois-pris­ons-coronavirus-halt-admis­sions. On March 22, Governor Jared Polis of Color­ado signed an exec­ut­ive order ensur­ing deten­tion centers reduce the number of people meet­ing in groups in “any confined indoor or outdoor space,” such as hous­ing unit common areas. foot­note11_nmz3l5p 11 Allison Sherry, “Color­ado’s Justice System is Still Catch­ing up to Coronavirus,” CPR News, March 24, 2020, https://www.cpr.org/2020/03/24/color­a­dos-justice-system-is-still-catch­ing-up-to-coronavirus/. In New York, Governor Andrew Cuomo issued an order on March 27th to release approx­im­ately 1,100 people from pris­ons and jails, specific­ally non-seri­ous parole viol­at­ors. foot­note12_0qwz22g 12 Berna­dette Hogan, “Cuomo Orders 1,100 Parole Viol­at­ors Released from Jails over Coronavirus Concerns,” N.Y. Post, March 27, 2020, https://nypost.com/2020/03/27/cuomo-orders-1100-parole-viol­at­ors-released-from-jails-over-coronavirus-concerns/. Iowa’s Depart­ment of Correc­tions is exped­it­ing the release of about 700 incar­cer­ated people who have been determ­ined eligible by the Iowa Board of Parole in addi­tion to ensur­ing that those released have a safe place to stay. foot­note13_7×8h­dk5 13 Linh Ta, “Iowa’s Pris­ons Will Accel­er­ate Release of Approved Inmates to Mitig­ate COVID-19,” Iowa Times-Repub­lican, March 23, 2020, https://www.times­rep­ub­lican.com/news/todays-news/2020/03/iowas-pris­ons-will-accel­er­ate-release-of-approved-inmates-to-mitig­ate-covid-19/. And Cali­for­nia is grant­ing early release to 3,500 incar­cer­ated indi­vidu­als in an attempt to reduce over­crowding in state pris­ons during the COVID-19 pandemic. The accel­er­ated prison discharges apply to those who were set to be released within the next 60 days. foot­note14_7nb1w0u 14 Paige St. John, “Cali­for­nia to release 3,500 inmates early as coronavirus spreads inside pris­ons,” Los Angeles Times, March 21, 2020, https://www.latimes.com/cali­for­nia/story/2020–03–31/coronavirus-cali­for­nia-release-3500-inmates-pris­ons.

Specific Recom­mend­a­tions

The actions listed above were taken by state lead­ers in the best interest of public safety and public health. Yet, we urge every governor in the United States to consider further action and to use the full author­ity avail­able to you to further blunt the devast­at­ing impact Covid-19 will have on imprisoned people, and by exten­sion, our communit­ies.

Clem­ency: Pardons, Commut­a­tions, and Reprieves

As Governors, many of you possess the power to grant clem­ency to people convicted and incar­cer­ated under the laws of your State. foot­note15_b4tx7h2 15 See Restor­a­tion of Rights Project, “Char­ac­ter­ist­ics of Pardon Author­it­ies,” accessed Janu­ary 23, 2020, https://ccre­source­cen­ter.org/state-restor­a­tion-profiles/50-state-compar­is­on­char­ac­ter­ist­ics-of-pardon-author­it­ies/. In many cases this author­ity is both broad and flex­ible, allow­ing you to delay punish­ment, cut a prison sentence short, or even pardon an offense outright. foot­note16_o7f8xx2 16 See Paul J. Larkin, “Revital­iz­ing the Clem­ency Process,” Harvard Journal of Law and Public Policy 39 (2016): 833, 845–47 (discuss­ing the types of clem­ency relief avail­able to someone under Amer­ican law). Depend­ing on state law, grants of clem­ency can also be ordered with condi­tions. foot­note17_dqjzxyr 17 See, e.g., Ala. Const. art. V, § 124 (“No pardon shall relieve from civil and polit­ical disab­il­it­ies unless specific­ally expressed in the pardon.”).

The clem­ency power was created to extend mercy to those convicted of crimes rapidly, at the stroke of a pen. Draw­ing on colo­nial preced­ent and English law, Alex­an­der Hamilton argued in The Feder­al­ist that the federal clem­ency power should be “as little fettered or embar­rassed,” and used proact­ively in “crit­ical moments” to defuse tension. foot­note18_5hld­wd7 18 See James Madison, “Feder­al­ist No. 74,” in The Feder­al­ist Papers (refer­en­cing, specific­ally, “seasons of insur­rec­tion or rebel­lion”); Larkin, “Revital­iz­ing the Clem­ency Process,” 844–48 (detail­ing the history of clem­ency in the Amer­ican system).

In this crisis, the clem­ency power’s flex­ib­il­ity and simpli­city make it a vital tool for fight­ing disease behind bars. Work­ing with your State’s correc­tional offi­cials, you can rapidly identify people vulner­able to the novel coronavirus and develop appro­pri­ate remed­ies to ensure their early release. In some states, grants of clem­ency may first require consulta­tion with other offi­cials; such action should be taken imme­di­ately to meet the urgency of this crisis. foot­note19_68xhy5x 19 Compare N.Y. Const., art. IV, § 4 (grant­ing broad author­ity to New York State’s governor) with Ariz. Const. art. V, § 5 and Ariz. Rev. Stat. §§ 31–402(A), (C) (“No reprieve, commut­a­tion or pardon may be gran­ted by the governor unless it has first been recom­men­ded by the board.”).

Ideally, people who are older, medic­ally comprom­ised, or near­ing the end of their prison terms could have their sentences commuted to time served and be released outright. We urge you to grant the broad­est relief to the largest group of people possible, but should this prove imprac­tic­able, we urge you to consider clem­ency relief in other forms, such as reprieves, which tempor­ar­ily suspend a sentence, or condi­tional pardons. foot­note20_6pzgh8e 20 See, e.g., Rachel Barkow, “Our Lead­ers Have the Power to Release People in Prison. Now They Must Use It,” The Appeal, March 27, 2020, https://theappeal.org/coronavirus-prison-commut­a­tions/ (“If lead­ers are concerned that they lack the time to make decisions whose effects are perman­ent, some can instead use their power to grant reprieves, a less-discussed mech­an­ism for release . . . that would essen­tially pause a person’s sentence. The release could last only until the pandemic subsides.”).

Extend­ing clem­ency to espe­cially vulner­able people behind bars will not jeop­ard­ize public safety. Our own research has shown that state prison sentences are often too long to begin with, and that roughly 14 percent of imprisoned people have “served suffi­ciently long prison terms and could likely be released within the next year with little risk to public safety.” foot­note21_z31a1yn 21 Lauren-Brooke Eisen et al., How Many Amer­ic­ans Are Unne­ces­sar­ily Incar­cer­ated?, Bren­nan Center for Justice, 2016, 8, 35–41, https://www.bren­nan­cen­ter.org/our-work/research-reports/how-many-amer­ic­ans-are-unne­ces­sar­ily-incar­cer­ated.  Moreover, research­ers have shown, time and time again, that the like­li­hood of recidiv­ism plum­mets as people age. One seminal study by the U.S. Senten­cing Commis­sion found that “offend­ers over sixty years old at the time of release had a recidiv­ism rate of 16.0 percent” — roughly a quarter the rate of people released before age 21. foot­note22_nbwp7ot 22 U.S. Senten­cing Commis­sion, Recidiv­ism Among Federal Offend­ers: A Compre­hens­ive Over­view, 2016, 5, 23, and 56, https://www.ussc.gov/research/research-reports/recidiv­ism-among-federal-offend­ers-compre­hens­ive-over­view; see also Mariel Alper et al., 2018 Update on Pris­oner Recidiv­ism: A 9-Year Follow-Up Period (2005–2014) Bureau of Justice Stat­ist­ics, 2018, 8–9, and tbl.5, https://www.bjs.gov/index.cfm?ty=pbde­tail&iid=6266.

Redu­cing the incar­cer­ated popu­la­tion is a public safety imper­at­ive. Start­ing with older indi­vidu­als, people who are medic­ally comprom­ised, and people who are close to complet­ing their sentences makes sense from both a public health and crim­in­o­lo­gical perspect­ive.

Expand Good Conduct Cred­its

We also encour­age you to use your other unique exec­ut­ive powers to further shrink the prison popu­la­tion as much as possible at this crit­ical time. Specific­ally, in states that offer addi­tional merit time or addi­tional cred­its to reduce prison sentences above and beyond “good-time” reduc­tions, we encour­age you to issue an exec­ut­ive order expand­ing the criteria for sentence reduc­tions under those programs.

The details of these programs vary widely by state, and exec­ut­ive inter­ven­tion may not be possible in all cases. foot­note23_yoil1hc 23 See Prison Fellow­ship, “Earned Time Credit: Issue Over­view,” accessed April 1, 2020, https://www.pris­on­fel­low­ship.org/resources/advocacy/release/earned-time-credit/.  We there­fore encour­age you to coordin­ate with your correc­tional admin­is­trat­ors — and offi­cials respons­ible for parole, proba­tion, or similar func­tions in your State — to determ­ine what exec­ut­ive action may be possible to protect as many imprisoned people as possible from seri­ous illness.

Creat­ive think­ing has already led to signi­fic­ant change in some states. Color­ado’s Governor Polis recently issued an exec­ut­ive order suspend­ing the criteria for issu­ance of earned time cred­its and the caps on earn­ing them, direct­ing the Color­ado Depart­ment of Correc­tions “to make awards of earned time cred­its as it deems neces­sary and appro­pri­ate to safely facil­it­ate the reduc­tion of the popu­la­tion of incar­cer­ated persons and parolees to prevent an outbreak in pris­ons.” foot­note24_g7xeyfj 24 Governor Jared Polis, Exec. Order No. D 2020 016 (March 25, 2020), https://drive.google.com/file/d/18o0y­WHzZle­HJ87h­m­gLuB­mX­wp­M8R74Q5x/view.  A paral­lel action in your states, where possible, could like­wise be used to safely reduce the size of the incar­cer­ated popu­la­tion.

Delay Senten­cing and Incar­cer­a­tion

We also urge you to confer with your State’s prosec­utors, and encour­age them — in consulta­tion with the defense bar, judi­ciary, and appro­pri­ate public health offi­cials — to delay senten­cing for people who have been convicted of crimes but not yet remanded to prison. Where people are held in jail pending senten­cing, their contin­ued deten­tion should also be recon­sidered, and new, more leni­ent condi­tions for release set. If the law does not permit review of pre-senten­cing deten­tion, prosec­utors can, at a minimum, encour­age and consent to post-convic­tion bail applic­a­tions and work with judges to set leni­ent condi­tions for release. foot­note25_7ank86g 25 See, e.g., N.Y. Crim. Proc. L. § 530.45(1) (permit­ting judges to, upon applic­a­tion of the defend­ant, set less restrict­ive release condi­tions “before senten­cing” in certain cases and for certain offenses); Me. Stat. tit. 15, § 1051(1) (permit­ting someone convicted of a crime to apply for bail “pending impos­i­tion of sentence”). Post­pon­ing the impos­i­tion of sentence, and releas­ing people while they await senten­cing, will ensure that justice is served while also keep­ing people out of prison and jail for the dura­tion of the crisis.

Limit the Damaging Impact of Crim­inal Justice Debt

Lastly, we encour­age you to use your exec­ut­ive powers to limit the damaging impact of crim­inal justice debt, includ­ing but not limited to court fees and fines. This past decade has seen a troub­ling and well-docu­mented increase in fees and fines imposed on defend­ants by crim­inal courts. foot­note26_br2z­fot 26 Matthew Menen­dez et al., The Steep Costs of Crim­inal Justice Fees and Fines, Bren­nan Center for Justice, 2019, https://www.bren­nan­cen­ter.org/FeesFines_Final5.pdf. This increase in fees and fines devast­ates people finan­cially. In fact, indi­gent people may face hundreds or thou­sands of dollars in accu­mu­lated debt that they are unable to pay. With more than 9.9 million jobless claims filed in the last two weeks, the unem­ploy­ment rate is likely to reach 10 percent over the coming days. foot­note27_zngkke8 27 Anneken Tappe, “A 3,000% jump in jobless claims has devast­ated the US job market,” CNN Busi­ness, April 2, 2020, https://www.cnn.com/2020/04/02/economy/unem­ploy­ment-bene­fits-coronavirus/index.html. Given these high rates of unem­ploy­ment in addi­tion to the diffi­culty in your citizens access­ing the court­house amidst court shut­downs and stay-in-place orders, we urge courts and muni­cip­al­it­ies across the coun­try to prior­it­ize policies that lessen the burden of court-imposed fees and fines on our citizens.

Courts and muni­cip­al­it­ies should waive collec­tion of all court-imposed crim­inal fees and fines until the end of this pandemic, without interest, and with no assess­ments of new debt. As state exec­ut­ives, you can also order private debt collect­ors to suspend collec­tions until the end of the novel coronavirus pandemic, again without interest accrual. You can also ensure that tax refunds and govern­ment relief checks are not garnished, that no liens are placed on hous­ing, and that access to bene­fits is not denied during this time. And finally, you can encour­age law enforce­ment offi­cials to vacate warrants for all unpaid fees and fines.

* * * * *

We thank you for the actions all of you have taken thus far to protect your communit­ies and the most vulner­able among us. However, as an organ­iz­a­tion dedic­ated to improv­ing our systems of justice, we also urge you to take these steps to safe­guard the lives of those who are held and work in correc­tional facil­it­ies, many of whom are at grave risk of seri­ous illness or death. We have put together a resource page with some guid­ance and examples of how differ­ent justice agen­cies across the nation have star­ted to change prac­tices and policies to reduce the harm­ful impact of COVID-19 on those most vulner­able in our soci­ety. 

 

Respect­fully,

Lauren-Brooke Eisen
Director, Justice Program

Ames Grawert
Senior Coun­sel & John L. Neu Justice Coun­sel

Taryn Merkl
Senior Coun­sel, Law Enforce­ment Lead­ers & Justice Program

End Notes