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Pandemic-Era Prison Releases a ‘Tipping Point’ for Reformers

May 29, 2020, 8:51 AM

Covid-19 has ravaged the nation’s prisons. Scores of inmates are dead. More are sick. And the healthy ones are at risk daily, despite calls for federal and state officials across all three branches of government to do more to save lives.

Sixty-four federal inmates have died from the disease as of May 28, according to U.S. Bureau of Prisons data. Thousands more along with hundreds of staff have tested positive.

With a still-rising clamor for action, the coronavirus pandemic has prompted people including Attorney General William Barr to support the release of some inmates who would’ve stayed locked up in more ordinary times, particularly older and medically vulnerable prisoners who pose relatively little risk to society.

That’s led reform advocates, academics, and lawyers to look at the increased use of compassionate release and home confinement during the crisis, and ask why officials can’t continue to make these modest releases—and then some—after the pandemic passes, especially if crime doesn’t rise as a result and cash-strapped states want the biggest bang for their public safety bucks?

As always, the answer could come down to the political will of lawmakers, executives, judges, and others empowered to make these life-or-death decisions, as well as how society reacts to any subsequent increase in crime. With lockdown and stay at home orders in place, rates are widely reported to have dropped.

“The sky’s not going to fall,” said Kevin Ring, whose organization, FAMM, has been advocating compassionate release for years. “These are old and sick people. They are the least likely to re-offend.”

Kent Scheidegger is legal director of the Criminal Justice Legal Foundation, a victims’ rights advocacy group. His group is opposed to releasing prisoners early, and says it is likely there has been an increase in crime due to the virus-related releases, but that the jump has been “masked in crime statistics by the even greater reduction caused by people sheltering at home.”

Still, some reformers, who’ve been fighting for years against warehousing older and sick inmates in particular, see a glimmer of hope that this generational tragedy could serve to promote a more evidence-based approach to crime and punishment.

Emergency Releases

The pandemic hit at a time when some criminal justice reforms had started to take shape.

The bipartisan First Step Act, signed into law by President Donald Trump in 2018, was criticized by some for not going far enough to topple the tough-on-crime policies that led to the U.S. having the world’s largest prison population.

But its reforms include the compassionate release provision that’s being used to get vulnerable inmates out of harm’s way.

Before the pandemic, “we were already seeing the culture shift a little bit and the number of releases rise,” said FAMM’s Ring. “I think we’re just seeing an acceleration because judges are seeing vulnerable people plus Covid.”

More than 250 federal prisoners have been freed by compassionate release since early April—compared to fewer than 150 from the First Step Act’s passage until then—according to a Marshall Project account.

The pandemic added another tool to the release toolbox, if only temporarily. Part of the CARES Act, passed in response to the emergency, gives Barr and the Bureau of Prisons expanded home confinement authority for the duration of the crisis.

The attorney general has directed the bureau to use home confinement to protect vulnerable inmates, but that hasn’t happened to the extent sought by advocates. The Department of Justice is also fighting some release requests as well as some virus-related safety measures imposed on facilities by judges.

The DOJ failed to respond to a request for comment on its pandemic relief efforts for this story.

Since late March, more than 3,000 federal inmates have been placed on home confinement, according to BOP data. State releases vary widely—with hundreds of inmate deaths and thousands of infections reported nationwide.

But the fact remains that people are leaving both state and federal facilities thanks to the virus.

Tipping Point

As they push for more aggressive action from the government, advocates also look to the future, thinking about how to capitalize on the extraordinary situation.

“The hope is that this moment does evidence an opportunity around releases and being responsive to the recommendations that have been suggested for many years,” said Nicole Porter, director of advocacy at The Sentencing Project. Her group promotes reforms in sentencing, racial disparities, and incarceration alternatives.

Echoing that notion, Jeremiah Mosteller, policy counsel at the bipartisan Due Process Institute, said “many of the reforms advocates have been calling for in recent years are being implemented temporarily in justice systems across our country.”

So the pandemic “could serve as a tipping point for the recent momentum to implement evidence-based policies and other reforms in our criminal justice system,” Mosteller said.

Underscoring the bipartisan nature of the reform effort, Marc Levin, chief of policy and innovation at the conservative group Right on Crime, said the pandemic presents “a chance to reexamine some things that were just kind of accepted and old ways of doing things that don’t make that much sense anymore.”

His organization supports conservative solutions for reducing crime, restoring victims, reforming offenders, and lowering taxpayer costs.

“We’ve always thought that the evidence has shown that you could have a smaller system but a more effective one,” Levin said. “Obviously the pandemic has magnified the risks of large congregated settings with poor sanitary conditions, which is what prisons and jails are.”

A new report from the Council on Criminal Justice notes, “even before the novel coronavirus surfaced, the calls for criminal justice reform in our country were urgent and widespread,” and that “Americans from across the ideological spectrum are pushing for a reevaluation of priorities, and for incarceration alternatives for people who pose no real threat to public safety.”

Among its recommendations is “establishing a ‘second look’ provision allowing people serving longer sentences—many of them elderly and infirm—to ask courts for sentence reductions.”

Experiment, Opportunity

These unexpected releases have created an experiment, of sorts—one that will play out in the months and years ahead.

Though officials could have acted more quickly and boldly, FAMM’s Ring said the crisis “has forced them to do things that are providing us a model to say, ‘Ok, well, how did it work?’”

The Sentencing Project’s Porter likewise said the nation is “in the middle of a social experiment when it comes to releases,” which creates “an opportunity to assess recidivism and returns to prison.”

What that assessment shows remains to be seen. But there’s reason to think that crime won’t rise—at least not due to the people getting out on compassionate release.

“The truth is, we are all functioning in a very unreal world right now,” said Philadelphia District Attorney Larry Krasner, a reform-minded prosecutor elected in 2017, who has worked to facilitate releases during the pandemic. His office has been tracking various crime metrics, and will be looking to see what happens to those who’ve come out during these times who probably wouldn’t have otherwise.

There “could be sort of a backlash, because we ever dared to let some people out for perfectly good reasons that were in the interests of justice,” Krasner said.

But, he added, it “may also be that, by recognizing that jails, just like cruise ships and senior centers, are potential launchpads for the virus, that there’s a little bit more of a light shined on those jails, there’s a little more thought by people in the general public who don’t think about it very much, what it’s like to be in a facility.”

Given the care that’s being exercised in only letting out good candidates for release, Krasner said, “my guess is going to be they really didn’t need to be in jail, pre-pandemic, post-pandemic, or in the middle of the pandemic. They really didn’t. And the data in general is going to support that. Some hearts and minds will be won over by that.”

Moving Forward

Ring spoke of the need to put reforms “in the Covid context.”

Compared to the federal government, “a lot of states don’t have the mechanisms in place to make these releases,” he said.

After the crisis, a priority will be to go to states and say, “Well, you said you couldn’t make these releases because you didn’t have the authority. Let’s create some of these authorities,” Ring said. Noting that DOJ’s expanded home confinement power is temporary, he said there should be a law that says, “In a declared national emergency, the Department has this authority.”

Advocates are also going to focus on why prison reform makes economic sense, in their view. That’s all the more salient when budgets are tight.

Sentencing expert Douglas Berman, an Ohio State University law professor, said “what’s really going to end up shaping this story for years to come are the basic economics.”

No state’s going to want to build a new prison now, he said.

Economic reality “forces the issue,” said Right on Crime’s Levin. “The pandemic has made this more urgent, and maybe it wouldn’t have been on some people’s radars or been a priority had the budgetary impact of this pandemic not occurred. I think we’ll have their attention.”

But economic factors could also make advocacy harder in some respects.

“Because the economy is so awful, and so many people are unemployed, this is going to make reentry for people coming out of prison even more difficult than it usually is,” said professor Rachel Barkow, a leading expert on criminal law and policy at the New York University Law School.

“That might skew the re-offending numbers in a way that is misleadingly high,” she said.

Meanwhile, Scheidegger, the crime victims’ advocate opposed to releases, suggested that the current crime rate data is misleading.

“As the country reopens,” he said, “the effect of releases will show in statistics as well. Perhaps this will be the event that wakes the public up.” He said inmates could be isolated instead of released.

The Due Process Institute’s Mosteller said that “most of the individuals who are released through these policies will return to their lives as law-abiding, productive members of their community.”

He conceded that, “inevitably, someone released from our prisons and jails during this time will commit another crime, and it has already happened in some places.” He noted that, “while one bad story will not end the pursuit of criminal justice reform in these places, the way communities and advocates respond to these anecdotal stories could hamper our leaders from adopting policies that will result in a long-term increase of public safety in our communities.”

In terms of what lessons people draw from the pandemic, in the end, DA Krasner said “it’ll all get a little clearer once the scrum is over and we can all stand up, covered in mud.”

Justice, he said, “tends to zig and zag. I don’t know whether we’ll be zigging or zagging after this pandemic. I would like to hope it will be towards progress. But we’ll see.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; John Dunbar at jdunbar@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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