The total number of releases announced represents almost 35 percent of the prisoners DOC held in its 12 facilities prior to the onset of the pandemic in March 2020. Both of those releases and the newest ones have been aimed at reducing crowding to slow the spread of the novel coronavirus.
As of November 6, 2020, DOC reported that 40 of its 18,300 prisoners and 59 of its 8,000 staff members were fighting the disease, which has infected a total of 3,052 state prisoners, according to statistics compiled by The Marshall Project. DOC has reported no deaths for weeks, a great improvement over the early days of the pandemic when most of New Jersey’s 52 COVID-19 prisoner deaths were recorded – enough still to leave the state with the highest rate in the nation.
Back on April 8, 2020, the state’s Office of the Public Defender and its chapter of the American Civil Liberties Union (ACLU) applied directly to the state Supreme Court for relief relating to the spread of the disease by obtaining permission to grant early release to certain groups of offenders and providing a framework for that to occur.
Two days later, Gov. Tom Wolf (D) issued Executive Order 124, resulting in the first set of prisoner releases. But on June 5, 2020, the state Supreme Court found no basis for it to grant relief relating to the spread of COVID-19 in state prisons and juvenile facilities, recognizing instead the role of other branches of government and remanding the matter to DOC.
Meanwhile, the governor’s order created two tracks for release review: parole or medical furlough. While excluding prisoners convicted or adjudicated of violent crimes, it identified which of those remaining were eligible: those at least 60 years old; those with an underlying medical condition that increases the risk of death or serious injury from COVID-19; those who were denied parole within the last year; and those whose sentence would end or be eligible for parole within 90 days.
The newest releases result not from an executive order but from a bill that since passed the state legislature with bipartisan support. The first of its kind in the country, the new law does not permit the release of those convicted of sex crimes, but it does allow release for some prisoners convicted of violent crimes, including murder.
Statistics from the earlier set of releases under the governor’s executive order provide a glimpse into the decision-making necessary to implement them. In that case, an initial review identified 3,050 prisoners for consideration, 550 of whom were declined for one reason or another.
A total of 607 prisoners received approval for medical furlough or parole, with 208 of those still under home confinement as of June 1, 2020. Another 42 awaited “test results, medical clearance, housing review, or had not been released for some other reason,” DOC’s chief of staff certified.
The director of release for the parole board certified that as of June 1, 2020, it had released 174 prisoners on parole. A total of 321 prisoners were granted parole or had their parole denial vacated, while 2,156 prisoners were denied parole. There were discrepancies in the numbers because some prisoners’ names appeared on both the parole and the medical furlough lists.
In its decision, the state Supreme Court also provided some guidance for lawmakers to follow in crafting the new bill – especially the necessity of adding due process considerations to medical furloughs because of a “sufficient expectation of eligibility for release.” The court said that prisoners should have the opportunity to submit a written statement in support of their medical furlough request, that the DOC commissioner must provide a statement of reasons to prisoners denied furlough, that those prisoners should then have opportunity to respond in order to try to satisfy the commissioner’s concerns and cure any mistakes, and that prisoners ought to have the right to seek relief in court without having to exhaust remedies.
As to juveniles, the court said the judiciary retains jurisdiction over their cases and to modify their dispositions. Thus, they may individually seek relief from the courts, who will “consider the ongoing COVID-19 crisis and its impact on the individual’s health.” An “overriding concern” is that because the risks of COVID-19 “are amplified in jail settings, every day matters.” Thus, the executive and judicial branch officials should “act as expeditiously as possible.”
Though the court said it does not have legal authority to oversee the furlough program or order prisoners to be paroled, it did claim the power to grant any prisoner’s motion for relief under Rule 3:21-10(b)(2). See: In the Matter of the Request to Modify Prison Sentences, Expedite Parole Hearings, and Identify Vulnerable Prisoners, Supreme Court of New Jersey, (M-1093-19) (084412).
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Related legal case
In the Matter of the Request to Modify Prison Sentences, Expedite Parole Hearings, and Identify Vulnerable Prisoners
|Cite||Supreme Court of New Jersey, (M-1093-19) (084412)|
|Level||State Supreme Court|