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Coronavirus: A Nationwide Survey of the Push for Early Release as Pandemic Fears Grow

by Christopher Zoukis

“Mother Nature is a serial killer. No one’s better. More creative. . . . She’s a bitch.”

– World War Z

Between January and August of 2019, the Department of Health and Human Services played a game, a simulation of sorts. The exercise was called Crimson Contagion, and it was designed to help the U.S. prepare for a viral pandemic. 

During the simulation, as reported by The New York Times, a group of 35 tourists from the United States, Australia, Kuwait, Malaysia, Thailand, Britain and Spain visited China. While there, they became infected with an unknown virus, flew home, and became their respective countries’ Patient Zeros. The World Health Organization declared a pandemic seven weeks later. In the United States, the Centers for Disease Control and Prevention (CDC) issued guidelines for social distancing and state governments directed the workforce to stay home. Nonetheless, the simulation predicted, the pandemic would ultimately infect 110 million Americans and kill 586,000.

Coronavirus: The Origins

On December 31, 2019, the Chinese government acknowledged the treatment of citizens in Wuhan, China, for pneumonia. Within a few days, Chinese researchers identified a new virus that had sickened dozens of people in Asia.

On January 11, 2020, Chinese media reported the death of a 61-year-old man who frequented a seafood and poultry market in Wuhan. This was to become known as the first known death from what came to be known as COVID-19, the disease caused by the novel coronavirus.

By January 23, 2020, the Chinese government cut off Wuhan, isolating a city of over 11 million people. By this point, “17 people had died, and more than 570 others had been infected,” reports The New York Times. A week later, the World Health Organization declared a global health emergency. And by March 13, 2020, President Trump declared a national state of emergency.

Within a few short months, the worldwide death toll would rise to over 188,000. And the number is rising. As of April 23, 2020, the virus has infected close to 2.7 million people.

Prisons: “Amplifiers of Infectious Diseases”

As the nation reels in response to waves of infections and deaths and the public adopts a new way of living – 6 feet apart – one group is left to fend for themselves: America’s incarcerated class.

The CDC has promulgated guidelines for all Americans. These include social distancing (keeping 6 feet apart), remaining home as much as possible, washing hands often, and using face masks as a barrier to disease. The most important factor remains social distancing because if people can isolate themselves, and thereby not come into contact with others who are infected, they can remain safe.

On March 11, 2020, California Governor Gavin Newsom recommended the cancellation of gatherings of more than 250 people to slow the spread of the coronavirus. By March 15, the CDC recommended that gatherings of 50 or more be canceled. The following day, the White House recommended gatherings of more than 10 be canceled.

Even local and state governments have issued their own guidelines. As reported by the New York Times, by April 7, 2020, every state except for North Dakota, South Dakota, Nebraska, Iowa, Arkansas, Wyoming, Oklahoma, and Utah had issued state-wide stay-at-home decrees, correctly viewing social distancing as the best manner of remaining safe.

But for those in American jails and prisons – people typically subjected to substandard nutrition, health care, and access to clean living environments – there is virtually no protection. Cramped in overcrowded dormitories with limited access to vital health-care information and care, many fear illness and death are inevitable.

As stated by Kelsey Kauffman in The Appeal, jails and prisons are “incubators and amplifiers of infectious diseases.” With nowhere to run, American prisoners can do little but hope and pray.

The State of COVID-19 in American Prisons

To combat the iron curtain of information in American jails and prisons, we at Prison Legal News have compiled an exhaustive accounting of the state of COVID-19 in every prison system across the country as we went to press. We are also reporting litigation over conditions of confinement and, where applicable, large-scale prison releases and guidelines to seek such release.

What follows is our analysis of the impact COVID-19 has had on every prison system and the movement to protect America’s incarcerated class through the mechanism of early release.

Federal Bureau of Prisons

On April 22, 2020, the federal Bureau of Prisons (BOP) reported 566 prisoners and 342 staff members had tested positive for coronavirus. Additionally, 24 prisoners had died because of the coronavirus.

The hardest-hit prisons include USP Lompoc in California (69 inmate positives, 17 staff positives); FCI Butner Medium I in North Carolina (46 inmate positives, 27 staff positives, four inmate deaths); FCI Danbury in Connecticut (44 inmate positives, 39 staff positives); FCI Oakdale I in Louisiana (37 inmate positives, 26 staff positives, six inmate deaths); and FCI Elkton in Ohio (36 inmate positives, 26 staff positives, four inmate deaths).

On March 26, 2020, Attorney General William Barr issued a memorandum directing the BOP to use the tool of home confinement as a mechanism for reducing the federal prison population. This memorandum presented several factors the BOP should use in determining which prisoners should be considered. These factors include:

• The age and vulnerability of the prisoner to COVID-19, in accordance with the CDC guidelines;

• The security level of the facility currently holding the prisoner, with priority given to prisoners residing in low- and minimum-security facilities;

• The inmate’s conduct in prison, with prisoners who have engaged in violent or gang-­related activity or who have incurred a BOP violation within the last year not receiving priority treatment;

• The prisoner’s score under PATTERN, a risk assessment tool for people in BOP prisons, with those who have anything above a minimum score not receiving priority treatment;

• Whether the prisoner has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the prisoner would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;

• The prisoner’s crime of conviction, and assessment of the danger posed by the prisoner to the community. Some offenses, such as sex offenses, render an inmate ineligible for home detention. Other serious offenses weigh more heavily against consideration for home detention.

On April 3, 2020, AG Barr issued a second memorandum, specifically directing the BOP to “immediately maximize appropriate transfers to home confinement of all appropriate inmates …[at] BOP facilities where COVID-19 is materially affecting operations.”

What follows is a compilation of federal cases, and then a state-by-state roundup, including information about how many prisoners have been released and due to what legal developments.

As of mid-April, the BOP had released 1,022 prisoners on home confinement because of these directives.

  • United States v. Michaels, 8:16-cr-76-JVS, (C.D. Cal. Mar. 26, 2020). The Court granted temporary release for 90 days, pursuant to 18 U.S.C. § 3142 (i), which authorizes discretionary temporary release when necessary for a person’s defense or another compelling reason. Judge James Selna held the defendant’s age and medical conditions, which place him in the population most susceptible to COVID-19, and in light of the pandemic, to constitute “another compelling reason” and granted his temporary release.
  • United States v. Colvin, No. 3:19-cr-179 (JBA), 2020 WL 1613943 (D. Conn. Apr. 2, 2020). Judge Janet Bond Arterton waived defendant’s exhaustion requirements and concluded “[i]n light of the expectation that the COVID-19 pandemic will continue to grow and spread over the next several weeks, the Court concludes that the risks faced by Defendant will be minimized by her immediate release to home” under a compassionate release, 18 U.S.C. § 3582(c)(1)(A)(i).
  • United States v. Jepsen, No. 3:19-cv-00073(VLB), 2020 WL 1640232 (D. Conn. Apr. 1, 2020). Judge Vanessa Bryant waived exhaustion requirements and granted compassionate release, pursuant to 18 U.S.C. § 3582(c), to an immunocompromised defendant with 8 weeks left to serve in light of severe risks posed by COVID-19.

• From Edmund H. Mahony, “Courts ponder the release of low risk inmates in an effort to block the spread of COVID-19 to the prison system,” Hartford Courant (Mar. 24, 2020): Judge Jeffrey Meyer ordered the release of defendant stating that “the conditions of confinement at Wyatt Detention Facility are not compatible” with current COVID-19 public health guidance concerning social distancing and avoiding congregating in large groups. Meyer is one of four federal judges in Connecticut who has released prisoners in connection with the COVID-19 pandemic.

  • In Re: Court Operations Under the Exigent Circumstances Created by COVID-19, (D. Conn. April 7, 2020). Judge Stefan Underhill held, “[p]ursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A(a)(l), and (c), the Office of the Federal Public Defender for the District of Connecticut is hereby appointed to represent any then-unrepresented defendant previously determined to have been entitled to appointment of counsel, or who was previously represented by retained counsel and is presently indigent, for purposes of issues relating to requests for early release. The Federal Public Defender, in consultation with the client, shall determine whether to present, and if appropriate shall present, any motion for modification of an imposed term of imprisonment for extraordinary and compelling reasons (“compassionate release” motion), in accordance with 18 U.S.C. § 3582(c)(1)(A)(i), in relation to the COVID-19 pandemic.

• United States v. Powell, No. 1:94-cr-316-ESH, (D.D.C. Mar. 28, 2020). Judge Ellen S. Huvelle granted “defendant’s unopposed motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) because of the COVID-19 global pandemic.”

• United States v. Meekins, No. 1:18-cr-222-APM (D.D.C. Mar. 31, 2020). Judge Mehta found COVID-19 to present exceptional reasons under 18 U.S.C. § 1345(c) to warrant to release pending sentencing.

• United States v. Jaffee, No. 19-cr-88 (RDM) (D.D.C. Mar. 26, 2020). Judge Moss released defendant, despite acknowledging offense charged — marijuana distribution and felon in possession — “is serious” because among other factors mitigating public safety concerns “incarcerating the defendant while the current COVID-19 crisis continues to expand poses a greater risk to community safety than posed by Defendant’s release to home confinement.”

• United States v. Mclean, No. 19-cr-380, (D.D.C. Mar. 28, 2020). Judge Moss declared “[a]s counsel for the Defendant candidly concedes, the facts and evidence that the Court previously weighed in concluding that Defendant posed a danger to the community have not changed – with one exception. That one exception – COVID-19 – however, not only rebuts the statutory presumption of dangerousness, see 18 U.S.C. § 3142(e), but tilts the balance in favor of release.”

  • United States v. Harris, No. 19-cr-356 (RDM) (D.D.C. Mar. 26, 2020). Judge Moss released defendant while awaiting trial after weighing the risk to the public of releasing defendant [charged with distribution of child pornography] directly against the risk to community safety if defendant remained incarcerated in light of the COVID-19 pandemic.
  • United States v. Tovar, No. 1:19-cr-341-DCN, Dkt. No. 42 (D. Idaho Apr. 2, 2020). Magistrate Judge Bush released defendant previously detained in presumption case in light of the ongoing public health emergency relating to the COVID-19 coronavirus pandemic providing a compelling basis for release under § 3142(i).
  • United States v. Davis, No. 1:20-cr-9-ELH, 2020 WL 1529158 (D. Md. Mar. 30, 2020). Magistrate Judge Boardman rejected the government’s motion for pretrial detention, considering “[t]he disruption to the attorney-client relationship caused by this public health crisis likely will have broader implications for the Court and the administration of justice” as a factor in the Bail Reform Act.
  • United States v. Underwood, No. 8:18-cr-201-TDC (D. Md. Mar. 31, 2020) “In the Court’s view … Underwood should receive strong consideration for a furlough under the present circumstances. Even though no inmate at FCI-Cumberland has tested positive for the coronavirus to date, there is significant potential for it to enter the prison in the near future… Underwood is a non-violent offender, has no significant prior criminal record, and poses no danger to the community at all. It would therefore be in the public interest to have someone in Underwood’s condition outside of FCI-Cumberland at the present time because of the public resources necessarily required to protect him from the virus and to treat him were he to become infected.”
  • United States v. Barkma, No. 19-cr-0052 (RCJ-WGC),2020 U.S. Dist. LEXIS 45628, (D. Nev. Mar. 17, 2020). Judge Jones delayed defendant’s date to surrender to begin his intermittent confinement by a minimum of 30 days because “[i]n considering the total harm and benefits to prisoner and society . . . temporarily suspending [defendant’s] intermittent confinement would appear to satisfy the interests of everyone during this rapidly encroaching pandemic.” In coming to this conclusion, the court placed weight on the fact that “incarcerated individuals are at special risk of infection, given their living situations, and may also be less able to participate in proactive measures to keep themselves safe; because infection control is challenging in these settings.
  • United States v. Claudio-Montes, No. 3:10-cr-212-JAG-MDM, Dkt. No. 3374 (D.P.R. Apr. 1, 2020). “[G]iven the COVID-19 pandemic afflicting the world, rather than issue an arrest warrant at this time, the Court will instead issue a summons.”
  • United States v. Copeland, No. 2:05-cr-135-DCN, at 7 (D.S.C. Mar. 24, 2020). Judge Norton granted compassionate release for a 73-year-old with severe health conditions under the First Step Act, “[g]iven defendant’s tenuous health condition and age, remaining incarcerated during the current global pandemic puts him at even higher risk for severe illness and possible death, and Congress has expressed its desire for courts to [release federal prisoners who are vulnerable to COVID-19].”
  • United States v. Hakim, No. 4:05-cr-40025-LLP (D.S.D. Apr. 6, 2020). Judge Piersol reducing sentence by an extra 40 months under the First Step Act in light of the extreme danger posed by COVID-19.
  • United States v. Kennedy, 18-cr-20315 (JEL) (Mar. 27, 2020 E.D. Mich.) Judge Levey ordered release under 18 U.S.C. § 3142(i)(4), both due to the risk of COVID-19 and the difficulty preparing defense while detained due to limits facility placed in response to COVID-19. The Court also noted that “waiting for either Defendant to have a confirmed case of COVID-19, or for there to be a major outbreak in Defendant’s facility, would render meaningless this request for release. Such a failure to act could have devastating consequences for Defendant and would create serious medical and security challenges to the existing prison population and the wider community.”
  • United States v. Marin, No. 15-cr-252, Dkt. No. 1326 (E.D.N.Y. Mar. 30, 2020) “The Court grants Defendant Jose Maria Marin’s motion …for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A), for … his advanced age, significantly deteriorating health, elevated risk of dire health consequences due to the current COVID-19 outbreak, status as a non-violent offender, and service of 80% of his original sentence. Although Defendant has not exhausted his administrative remedies in the manner prescribed by Section 3582(c), because the government is consenting to the requested sentencing reduction, the Court deems Section 3582(c)’s exhaustion requirement as having been met.”
  • United States v. Foster, No. 1:14-cr-324-02, Dkt. No. 191 (M.D. Pa. Apr. 3, 2020). Judge Jones granted defendant’s compassionate release pursuant to 18 U.S.C. § 3582 (c)(1)(A), noting the “unprecedented” circumstances facing “our prison system” and finding that COVID-19 is an extraordinary and compelling basis for release; indeed, “[n]o rationale is more compelling or extraordinary.”
  • United States v. Garlock, No. 18-CR-00418-VC-1, 2020 WL 1439980, (N.D. Cal. Mar. 25, 2020). Judge Chhabria issued a sua sponte decision extending defendant’s surrender date from June 12, 2020 to September 1, 2020, stating: “By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided…To avoid adding to the chaos and creating unnecessary health risks, offenders who are on release and scheduled to surrender to the Bureau of Prisons in the coming months should, absent truly extraordinary circumstances, have their surrender dates extended until this public health crisis has passed.”
  • In the Matter of The Extradition of Alejandro Toledo Manrique, No. 19-mj-71055-MAG, 2020 WL 1307109, (N.D. Cal. Mar. 19, 2020). Judge Hixon released a 74-year-old in light of COVID-19 holding “[t]he risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail. Release under the current circumstances also serves the United States’ treaty obligation to Peru, which – if there is probable cause to believe Toledo committed the alleged crimes – is to deliver him to Peru alive.”
  • United States v. Bolston, No. 1:18-cr-382-MLB (N.D. Ga. Mar. 30, 2020). Magistrate Judge Cannon releasing defendant in part because “the danger inherent in his continued incarceration at the R.A. Deyton Detention Facility . . . during the COVID-19 outbreak justified his immediate release from custody.”

• Mays v. Dart, No. 20 C 2134 (April 7, 2020). Plaintiffs sought certification of a class and the temporary restraining order based, in part, “that the Sheriff has violated their Fourteenth Amendment right to constitutionally adequate living conditions by failing to implement appropriate measures to control the spread of the virus.” In issuing a temporary restraining order, Judge Kennelly found “plaintiffs have demonstrated that certain of the conditions created by the intentional actions of the Sheriff enable the spread of coronavirus and significantly heighten detainees’ risk of contracting the virus.

  • United States v. Hernandez, No. 18-cr-20474 (S.D. Fla. Apr. 2, 2020). Judge Altonaga granted an unopposed motion for compassionate release.
  • United States v. Grobman, No. 18-cr-20989 (S.D. Fla. Mar. 29, 2020) Magistrate Judge Goodman released an incarcerated individual due to the “extraordinary situation of a medically-compromised detainee being housed at a detention center where it is difficult, if not impossible, for [the defendant] and others to practice the social distancing measures which government, public health and medical officials all advocate.”

• Amended Order, United States v. Perez, No. 19-cr-297 (PAE), at 1 (S.D.N.Y. Mar. 19, 2020). Judge Englemayer granted defendant temporary release from custody, pursuant to 18 U.S.C. § 3142(i), “based on the unique confluence of serious health issues and other risk factors facing this defendant, including but not limited to the defendant’s serious progressive lung disease and other significant health issues, which place him at a substantially heightened risk of dangerous complications should be contract COVID-19 as compared to most other individuals.”

  • United States v. Resnik, No. 14-cr-910 (CM), 2020 WL 1651508 (S.D.N.Y. Apr. 2, 2020). Chief Judge Colleen held “Releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19.”
  • United States v. Stephens, No. 15-cr-95-AJN, 2020 WL 1295155, (S.D.N.Y. Mar. 19, 2020). Judge Nathan ordered the Defendant released subject to the additional conditions of 24-hour home incarceration and electronic location monitoring as directed by the Probation Department based in part on “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic” which may place “at a heightened risk of contracting COVID-19 should an outbreak develop [in a prison].”
  • United States v. Zukerman, No. 1:16-cr-194-AT, (S.D.N.Y Apr. 3, 2020). Judge Torres waived exhaustion requirements and granted immediate compassionate release in light of COVID-19 to defendant convicted in a multi-million dollar fraud scheme motivated by greed. “The severity of Zukerman’s conduct remains unchanged. What has changed, however, is the environment where Zukerman is serving his sentence. When the Court sentenced Zukerman, the Court did not intend for that sentence to ‘include a great and unforeseen risk of severe illness or death’ brought on by a global pandemic.”
  • United States v. Perez, No. 17-cr-513-3 (AT) (S.D.N.Y. Apr. 1, 2020). “The Court holds . . . that Perez’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic.”
  • United States v. Muniz, No. 4:09-cr-199 (S.D. Tex. Mar. 30, 2020). Judge Ellison released a defendant serving a 188-month sentence for drug conspiracy in light of vulnerability to COVID-19 stating, “while the Court is aware of the measures taken by the Federal Bureau of Prisons, news reports of the virus’s spread in detention centers within the United States and beyond our borders in China and Iran demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable to infection.”

• United States v. Hector, No. 2:18-cr-3-002 (W.D. Va. Mar. 27, 2020; see also United States v. Hector, No. 18-cr-3 (4th Cir. Mar. 27, 2020). Judge Jones granted release after reconsidering the court’s prior order denying the defendant’s motion for a stay of her imprisonment pending her appeal in light of the Fourth Circuit remand requiring the lower court to specifically consider extraordinary danger posed by COVID-19.

  • United States v. Edwards, No. 6:17-cr-00003 (W.D. Va. Apr. 2, 2020). Judge Moon granted compassionate release; remarking “[h]ad the Court known when it sentenced Defendant in 2018 that the final 18 months of his term in federal prison would expose him to a heightened and substantial risk presented by the COVID-19 pandemic on account of Defendant’s compromised immune system, the Court would not have sentenced him to the latter 18 months.”
  • Xochihua-Jaimes v. Barr, No. 18-cv-71460 (9th Cir. Mar. 23, 2020). The panel held “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”
  • Castillo v. Barr, No. 20-cv-605 (TJH)(AFM), at 10 (C.D. Cal. Mar. 27, 2020). Judge Halter ordered the release of two ICE detainees. The court found that in detention “petitioners have not been protected [against risks associated with COVID-19]. They are not kept at least 6 feet apart from others at all times. They have been put into a situation where they are forced to touch surfaces touched by other detainees, such as common sinks, toilets and showers. Moreover, the Government cannot deny the fact that the risk of infection in immigration detention facilities – and jails – is particularly high if an asymptomatic guard, or other employee, enters a facility. While social visits have been discontinued at Adelanto, the rotation of guards and other staff continues.”

• Transcript of Oral Argument, at 3-4, 6, Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020). Judge Wolf ordered the release, with conditions, from ICE custody of a member of the class in Calderon v. Nielsen based, in part, on the “extraordinary circumstances” posed by COVID-19.

  • Jovel v. Decker, No. 12-cv-308 (GBD), at 2 (S.D.N.Y. Mar. 26, 2020). Judge Daniels ordered the release, under Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001), of an individual as there was likelihood of success on the merits and COVID-19 risks and individual’s own medical issues constituted “extraordinary circumstances warranting release.”
  • Coronel v. Decker, No. 20-cv-2472 (AJN), at 10 (S.D.N.Y. Mar. 27, 2020). Judge Nathan ordered the immediate release of four detainees, finding “no evidence that the government took any specific action to prevent the spread of COVID-19 to high-risk individuals…held in civil detention.”
  • Basank v. Decker, No. 20-cv-2518 (AT), at 7, 10 (S.D.N.Y. Mar. 26, 2020). Judge Torres granted immediate release on recognizance for 10 individuals in immigration detention who have a variety of chronic health conditions that put them at high risk for COVID-19. These conditions include obesity, asthma, diabetes, pulmonary disease, history of congestive heart failure, respiratory problems, gastrointestinal problems, and colorectal bleeding. The court held detainees face serious risks to their health in confinement and “if they remain in immigration detention constitutes irreparable harm warranting a temporary restraining order.”
  • Thakker v. Doll, No. 20-cv-480 (JEJ), at 8 (M.D. Pa. Mar. 31, 2020). Judge Jones III ruled that federal immigration authorities must immediately release the 10 individuals in immigration detention who are at high risk for contracting COVID-19 due to their age or medical conditions or both. In his decision, Judge Jones III noted, “At this point, it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein. It is not unlikely that COVID-19 is already present in some county prisons.”

 Alabama

On April 13, 2020, the Alabama Department of Corrections (ADOC) reported 46 prisoners had been tested for COVID-19. Of these, no prisoners have tested positive. Ten tests remain pending.

As of April 6, 2020, Alabama has released no prisoners in response to COVID-19. At the local level, several counties have elected to release prisoners.

Administrative Order, No. 2020-00010, Ala. Ct. App. (Mar. 18, 2020). Judge Fuller ordered “all prisoners currently held on appearance bonds of $5,000.00 or less be immediately released on recognizance with instructions to personally appear at their next scheduled court appearance.”

 

Alaska

As of April 14, 2020, 31 prisoners in the Alaska Department of Corrections (ADOC) had been tested for coronavirus. Twenty-six of these prisoners were negative, and five test results had been pending. Four staff members at Lemon Creek Correctional Center in Juneau have tested positive.

As of April 15, 2020, Alaska had released no prisoners in response to COVID-19.

Karr v. Alaska, Nos. A-13630/13639/​13640 (Alaska Mar. 24, 2020). Alaska’s intermediate appellate court holds that COVID-19 is a changed circumstance that courts must consider when deciding bail motions.

 

Arizona

On April 15, 2020, the Arizona Department of Corrections (ADOC) reported it had tested 88 prisoners for coronavirus. Of these, 66 prisoners were negative, 10 were positive, and 12 results were still pending.

As of April 15, 2020, Arizona has released no prisoners because of COVID-19. At the local level, both Coconino and Pima Counties have elected to release prisoners in response to the pandemic.

From Scott Buffon, “Coconino County jail releases nonviolent inmates in light of coronavirus concerns,” Arizona Daily Sun: As of March 25, 2020, Judge Dan Slayton and other county judges have released around 50 people who were held in the county jail on nonviolent charges.

 

Arkansas

On April 14, 2020, the Arkansas Department of Corrections (ADOC) reported 35 staff members and 61 prisoners had tested positive for COVID-19. At least 44 of the prisoners who tested positive were housed at the ADOC’s Cummins Unit.

As of April 15, Arkansas had released no prisoners because of COVID-19. At the local level, several counties have granted early release.

 

California

On April 15, 2020, the California Department of Corrections and Rehabilitation (CDCR) reported that 590 prisoners had been tested for coronavirus, with 69 prisoners testing positive. Additionally, 78 staff members have tested positive.

The CDCR has also announced an expedited parole release plan for eligible prisoners. Sex offenders, violent offenders, and domestic violence offenders are not eligible. CDCR reports that as of April 13, 2020, approximately 3,500 eligible prisoners will be released.

According to the CDCR’s website, prisoners within 60 days of their earliest parole eligibility date are eligible for early release. The CDCR will also implement “on-site strike teams” to determine expedited parole eligibility. Prisoners within 30 days of their earliest parole eligibility date will receive priority, followed by those within 60 days of their earliest parole eligibility date.

Effective March 24, 2020, CDCR implemented a 30-day suspension of admissions to adult and juvenile prison facilities.

On March 30, 2020, Los Angeles County Sheriff Alex Villanueva released 1,700 prisoners. These prisoners were convicted of nonviolent misdemeanors. They are scheduled to be released within 30 days.

Advisory from California Chief Justice Tani Cantil-Sakauye to Presiding Judges and Court Executive Officers of the California Courts (March 20, 2020): The Chief Justice issued guidance encouraging the state’s superior courts to, among other things: 1) “Lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses.” 2) “Consider a defendant’s existing health conditions, and conditions existing at the anticipated place of confinement, in setting conditions of custody for adult or juvenile defendants.” 3) “Identify detainees with less than 60 days in custody to permit early release, with or without supervision or community-based treatment.”

Standing Order of the Sacramento Superior Court, No. SSC-20-PA5 (Mar. 17, 2020). The Court entered a standing order authorizing their sheriff to release those within 30 days of release, regardless of crime.

 

Colorado

On April 8, 2020, the Colorado Department of Corrections (CDOC) reported that the first prisoner had tested positive for coronavirus.

On March 25, 2020, Colorado Governor Jared Polis issued Executive Order D 2020 016, suspending the transfer of jail detainees to the state’s prisons. This sweeping order expanded the CDOC’s and Parole Board’s ability to release prisoners early by suspending three provisions of the Colorado statutory code:

• C.R.S. § 17-22.5-405: This suspends the caps and criteria awards of earned time credits allowing the CDOC to make additional 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.”

• C.R.S. §§ 17-22.5-403.5 and 17-1-102(7.5)(a): This suspends the criteria for release to Special Needs Parole, permitting the CDOC to have “the discretion to identify interim criteria for Special Needs Parole and refer persons who meet those criteria to the Parole Board.”

• C.R.S. § 17-27.5-101(1)(a): This suspends the requirement for prisoners to complete a regimented inmate disciplinary program before the CDOC having the “authority to establish and directly operate an intensive supervision program.”

On April 9, 2020, CDOC Executive Director Dean Williams issued a memorandum specifying the changes the state’s prison system is making to facilitate early releases. In qualifying for Special Needs or Medically Necessary Parole, the CDOC is now considering these factors:

• If the inmate is at a higher risk of mortality from COVID-19 due to underlying medical conditions;

• If the inmate is a low public safety risk to the community;

• Whether the inmate can obtain medical services in their community.

This memorandum also provided new guidelines for placement on Intensive Supervision Parole. These include permitting both prisoners not yet paroled to becoming eligible for program placement and prisoners within 180 days of their parole eligibility date becoming eligible. Preference is given to prisoners with no recent disciplinary history, prisoners who have participated in programming, and otherwise good institutional conduct (e.g., documentation of Security Threat Group validation or placement on Management Control Group status within two years weighing against release). Sex offenders, homeless offenders, and prisoners with detainers are not eligible for release.

The final provision discussed in this memorandum concerns earned time credits. The CDOC is now authorized to award an additional 180 days of earned time. Sex offenders, prisoners who have refused programming, those who have served less than one year in prison, those who have community or parole violations in the past 12 months, prisoners placed on any Management Control Unit status within two years, prisoners with a disciplinary record within the past 12 months, and those who have detainers are not eligible. Additionally, only prisoners serving Class 4, 5, and 6 felonies and drug offenses at felony Class 3 and 4 are considered for additional good conduct time. All prisoners must have a projected release date prior to August 2021.

On April 13, 2020, the CDOC announced the agency had released 52 prisoners early because of these expanded early-release provisions.

 

Connecticut

On April 15, 2020, the Connecticut Department of Corrections (CDOC) reported 199 prisoners and 139 staff members have tested positive for COVID-19. One inmate has died.

In an unusual decision, on April 8, 2020, the CDOC announced that all prisoners who test positive for COVID-19 will be transferred to the Northern Correctional Institution. As of April 15, 2020, the CDOC reported 117 prisoners confined in the isolation unit at Northern Correctional Institution.

On April 6, 2020, the CDOC announced it had released 727 prisoners in response to the pandemic.

 

Delaware

On April 15, 2020, the Delaware Department of Corrections (DDOC) reported 13 prisoners and 18 staff members have tested positive for coronavirus.

As of April 15, 2020, Delaware has not planned to release any prisoners early because of COVID-19.

 

Florida

On April 15, 2020, the Florida Department of Corrections (FDOC) reported that 56 staff members and 35 prisoners have tested positive for COVID-19.

Also, as of that date, Florida has made no plans to release prisoners early. At the local level, several counties have elected to release prisoners early.

Florida Governor Ron DeSantis, in resisting pressure to release prisoners, stated that he was concerned about “society fraying” and whether releasing prisoners would actually support the CDC’s recommendation of social distancing.

 

Georgia

On April 15, 2020, the Georgia Department of Corrections (GADOC) reported 59 staff members and 60 prisoners have tested positive. Six staff members and 22 prisoners have recovered. Three prisoners and one staff member have died from the virus. Additionally, seven prisoners at county and private prisons have contracted COVID-19, with three recovering.

The GADOC has suspended all new prison admissions from county jails due to the pandemic.

The Georgia Board of Pardons and Paroles had begun to review about 200 prisoners for early release. They are considering people serving time for nonviolent offenses who are within 180 days of completing their prison sentences (or of their tentative parole date). The process is expected to take 30 days.

“The State Board of Pardons and Paroles understands the concerns and fully supports our state’s efforts to combat COVID-19, including safety protocols implemented by the Department of Corrections,” Terry Barnard, State Board of Pardons and Paroles chair, said. “The Parole Board is operating normally and will continue to use its constitutional authority to make clemency release decisions in the interest of public safety.”

 

Hawaii

As of April 2, 2020, the Hawaii Department of Public Safety (HDPS) has reported no cases of coronavirus.

As of April 11, 2020, Hawaii had not planned to release prisoners early because of the pandemic. When asked by Honolulu’s Public Defender James Tabe, Acting Prosecuting Attorney General Dwight Nadamoto said that he was not willing to agree to a “wholesale release” of prisoners.

Officials announced that starting April 13, 2020, HDPS will engage in “population relief efforts” consisting of transferring state prisoners to the federal Metropolitan Detention Center Honolulu. These efforts are being made to combat the potential impact of COVID-19 on the HDPS’ inmate population.

Order of Consolidation and for Appointment of Special Master, SCPW-20-0000200, SCPW-20-0000213 at 6 (Haw. Apr. 1, 2020). The court appointed a Special Master who will “work with the parties in a collaborative and expeditious manner to address the issues raised in the two petitions and to facilitate a resolution while protecting public health and public safety.”

 

Idaho

As of April 14, 2020, the Idaho Department of Corrections (IDOC) reported testing 22 prisoners. All test results were negative for coronavirus.

As of April 6, 2020, Idaho had not announced plans to release prisoners early because of COVID-19.

 

Illinois

As of April 15, 2020, the Illinois Department of Corrections (IDOC) reported 124 staff members and 146 prisoners have tested positive for COVID-19. To date, five prisoners have died due to the coronavirus.

On March 23, 2020, Governor J. B. Pritzker issued COVID-19 Executive Order 9, permitting prisoners to be released early for clear conduct in prison.

Three days later, Pritzker issued COVID-19 Executive Order 11 barring the transfer of detainees and prisoners from Illinois county jails to the state’s prison facilities.

On March 27, 2020, the Illinois Department of Corrections announced that at least six women and their babies were released from a special wing that houses mothers and newborn babies at Decatur Correctional Center in Illinois. The “Moms and Babies” wing is a specialized program that allows pregnant prisoners to give birth and remain with their newborns until they turn two.

On April 6, 2020, Governor Pritzker signed COVID-19 Executive Order 19, permitting the temporary release of “medically vulnerable” prisoners. This temporary release is only extended to the period in which Illinois is in a state of emergency.

  • Ralph Coleman, et al., Plaintiffs, v. Gavin Newsom, et al., Defendants. Marciano Plata, et al., Plaintiff, No. 01-CV-01351-JST, 2020 WL 1675775 (E.D. Cal. Apr. 4, 2020). Class action seeking emergency motion to modify 2009 population reduction order for California state prison. Motion denied without prejudice.
  • James Money, et al. Plaintiffs, v. J.B. Pritzker, et al. Defendants. No. 20-CV-2093, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020). Lawsuit seeking the release of thousands of Illinois state prisoners through medical furlough or home detention. Motion for temporary restraining order and preliminary injunction denied.

 

Indiana

As of April 15, 2020, the Indiana Department of Corrections (IDOC) reported that 55 staff members and 34 prisoners have tested positive for coronavirus. One prisoner has died.

As of April 6, 2020, the IDOC had not yet disclosed plans to release prisoners early but did acknowledge that a list of prisoners who could potentially be released had been submitted to the courts. At the local level, several counties have elected to release prisoners early.

 

Iowa

As of April 15, 2020, the Iowa Department of Corrections (IDOC) reported that 59 prisoners had been tested. While no prisoners have tested positive, one staff member has tested positive for the virus.

On April 10, 2020, the IDOC, in conjunction with the Iowa legislature, announced plans to reduce the prison population by approximately 700 prisoners. According to this report, “The DOC continues to work with the Iowa Parole Board (BOP) and the eight CBC Districts to safety transition as many prisoners as possible to community supervision. As part of the DOC’s submission of candidates to the BOP, priority is being given to those nearing discharge, are lower risk, and/or have a suitable living arrangement upon reentry.” The report continues, “Currently, the prisons are approximately 20.0% over designed capacity…In the last week, prison population has decreased by 26.”

 

Kansas

As of April 15, 2020, the Kansas Department of Corrections (KDOC) reported 24 staff members and 21 prisoners have tested positive for COVID-19.

“Currently, there are no plans to free any prisoners ahead of their scheduled release dates,” said Rebecca Witte, KDOC public information officer. “Governor Kelly and the KDOC are in the exploratory phase of examining potential options to minimize the impact of COVID-19 in Kansas prisons.”

At the local level, several counties have elected to release prisoners early to mitigate the potential damage of COVID-19 in their jails.

 

Kentucky

As of April 7, 2020, nine prisoners and five staff in the Kentucky Department of Corrections have tested positive.

On April 2, 2020, Kentucky Governor Andy Beshear signed an executive order commuting the sentences of 186 prisoners convicted of felonies. This came in response to the state suffering 11 more deaths due to COVID-19. The state also plans to release 743 people who are within six months of completing their sentences. The Governor clarified that all of the prisoners were convicted of Class C and D felonies, the two lowest level felonies in the state’s criminal justice system. Those convicted of violent and sexual crimes were not granted relief.

• From Kyle C. Barry, “Some Supreme Courts Are Helping Shrink Jails to Stop Outbreaks. Others Are Lagging Behind,” The Appeal (Mar. 25, 2020), and John Cheves,“Chief Justice Pleads for Kentucky Inmate Release Ahead of COVID-19 but Progress Slow,” Lexington Herald Leader (Mar. 23, 2020). Kentucky Chief Justice John Minton Jr. told state’s judges and court clerks to release jail prisoners “as quickly as we can” noting “jails are susceptible to worse-case scenarios due to the close proximity of people and the number of pre-existing conditions,” and that courts have the responsibility “to work with jailers and other county officials to safely release as many defendants as we can as quickly as we can.”

 

Louisiana

As of April 15, 2020, the Louisiana Department of Public Safety and Corrections (LDPSC) announced 65 inmates and 55 staff cases testing positive. Of these, some individuals had recovered. While there have been no prisoner deaths, there has been one staff death.

The LDPSC has also proposed changes to parole and probation operations. These include recommendations to judges and the parole board to release qualifying nonviolent and non-sex offenders if confined for technical violations. As of April 9, 2020, these recommendations resulted in the removal of approximately 2,000 detainer holds.

On March 26, 2020, New Orleans district court judges ordered the release of detainees charged with misdemeanors, failure to appear, contempt of court, and pretrial defendants remanded to custody due to failing drug tests.

Letter from Louisiana Chief Justice Bernette J. Johnson to Louisiana District Judges Johnson recognized that “it is important to safely minimize the number of people detained in jails where possible.” Justice Johnson instructed all District Judges to “conduct a comprehensive and heightened risk-based assessment of all detainees.” Among other things: 1) For pretrial detainees charged with a misdemeanor and violent, judges should consider nominal or reduced bail or release on personal recognizance. 2) For those convicted of misdemeanors, judges should “consider modification to a release and supervised probation or simply time-served.” 3) For probation revocations, judges should “confer with Probation and Parole to determine whether there is an alternative to detention, especially with technical violations.” 4) Judges should “suggest to law enforcement that, whenever practicable, they issue summons and citations on misdemeanor crimes and non-violent offenses in lieu of arrest.”

 

Maine

As of April 13, 2020, the Maine Department of Corrections (MDOC) announced that it had tested 17 prisoners. Of these, 16 tests were negative, and one was pending. One prisoner was currently in medical isolation, and one staff member who worked at the Bolduc Correctional Facility tested positive for COVID-19.

The MDOC has also announced the expanded use of Supervised Community Confinement (for adults) and Community Reintegration (for juveniles). These programs permit prisoners to be transferred to their communities to serve out the remainder of their sentences.

For adults to qualify for Supervised Community Confinement, they must 1) have less than a year remaining on their sentence; 2) not be serving time for a crime against another person; 3) no criminal history including a crime against a person, fugitive from justice, or multiple prior revocations of probation; 4) be classified as community custody; and 5) have a release plan which includes stable housing, medical services, and treatment services (as applicable). Additionally, the inmate’s medical history and current conditions, history on probation with an emphasis on positive compliance, and treatment and programming progress while incarcerated are considered.

When determining if a juvenile qualifies for Community Reintegration, these factors are considered: 1) severity of offense history; 2) availability and stability of the residential placement and environment; 3) length of time incarcerated; 4) progress in facility treatment and programming; 4) community and family support available in the community; 5) treatment and programming availability in the community; and 6) length of time left until the juvenile’s maximum release date.

As of March 27, 2020, 57 adult prisoners had their cases considered for Supervised Community Confinement. Of these 57, 29 had been released. In the same report, the MDOC stated that they anticipated approving an additional 15 adult prisoners by April 3 and 12 more adult prisoners by April 10. Also, as of March 27, 2020, the MDOC announced that it had released 12 detained youths and five committed youth under the Juvenile Reintegration protocol. They anticipated releasing four additional committed youth by April 1.

On April 13, 2020, the MDOC confirmed that six adult males and three adult females would be released on Supervised Community Confinement within the next 14 days, with an additional 22 males and six females requests pending. Two juveniles were scheduled to be released on Juvenile Reintegration within the next 14 days.

Emergency Order Vacating Warrants for Unpaid Fines, Unpaid Restitution, Unpaid Court-Appointed Counsel Fees, and Other Criminal Fees (Mar. 17, 2020). The Superior Court and District Court ordered all trial courts to immediately vacate all outstanding warrants for unpaid fines, restitution, fees, and failures to appear.

 

Maryland

As of April 12, 2020, the Maryland Department of Public Safety and Correctional Services (DPSCS) announced that 18 prisoners and 47 staff members had tested positive, with one fatality.

As of April 15, 2020, Maryland has made no plans to release prisoners early due to COVID-19.

 

Massachusetts

As of April 2, 2020, the Massachusetts Department of Corrections announced that 23 prisoners and three staff members had tested positive. In addition, one prisoner has died from COVID-19.

In the March 31 to April 3, 2020 session, the Massachusetts Supreme Judicial Court ruled that people held pretrial for non-violent offenses and those held for technical probation/parole violations are eligible for hearings to determine if they can be released. Defendants charged with assault and battery, domestic violence, and certain sex offenses are not eligible for relief.

In response to the above order, by April 14, 2020, 367 detainees have been released from county jails.

Op. and Order, Committee for Public Counsel Services v. Chief Justice of the Trial Court, SJC 12926 (Mass. Apr. 3, 2020). The Supreme Judicial Court held that people who are held pretrial on bail and have not been found dangerous or charged with a violent or otherwise excluded offense are entitled to a hearing within two business days of filing their motions, where they will be entitled to a rebuttable presumption of release.

 

Michigan

As of April 11, 2020, the Michigan Department of Corrections had 364 confirmed cases of coronavirus with eight dead. Jackson County’s Parnall Correctional Facility had the highest number of positive cases, with 144 positives. Out of these, 151 positives were a result of staff members, with two staff members amongst the fatalities.

On March 30, 2020, Michigan Governor Gretchen Whitmer issued an executive order which suspended portions of the Jail Overcrowding Emergency Act. This permitted local jails to release vulnerable prisoners if their release would not pose a danger to the public.

Joint Statement of Chief Justice Bridget M. McCormack, Mich. Sup. Ct. and Sheriff Matt Saxton, Exec. Dir., Mich. Sheriff Ass’n (Mar. 26, 2020): In the statement, Chief Justice McCormack urged judges to “use the statutory authority they have to reduce and suspend jail sentences for people who do not pose a public safety risk,” to “release far more people on their own recognizance while they await their day in court” and to “use probation and treatment programs as jail alternatives.”

 

Minnesota

As of April 15, 2020, the Minnesota Department of Corrections (MDOC) announced it had tested 56 prisoners. Of these, 15 were confirmed positive and 26 were presumed positive due to exhibiting symptoms and having close contact with affected individuals. To date, seven prisoners have recovered from COVID-19.

On April 9, 2020, MDOC Commissioner Paul Schnell said he was considering releasing prisoners up to six months early. He advised that releases could start as soon as the following week. When discussing eligibility, Schnell remarked that prisoners would need to have served over half of their sentence, and that sex offenders, those with court-ordered in-prison therapy, and prisoners with out-of-state warrants would not be eligible.

At the local level, Hennepin County had released detainees early to mitigate the risk of COVID-19.

 

Mississippi

On April 13, 2020, the Mississippi Department of Corrections (MDOC) reported that four staff members and one inmate, who has since died, have tested positive for coronavirus.

As of March 30, 2020, Mississippi had not planned to release prisoners early in response to COVID-19.

According to The Clarion Ledger, “At least 30 inmates have died in MDOC custody since Dec. 29, when riots erupted at prisons across Mississippi.”

 

Missouri

On April 15, 2020, the Missouri Department of Corrections announced that 11 staff members and one prisoner have tested positive for coronavirus. One inmate has also died. In total, 49 prisoners have been tested.

On March 30, 2020, Missouri Supreme Court Chief Justice George Draper sent a letter to trial-level judges clarifying the state’s criminal provisions and pointing out courts’ authority to release both prisoners and jail detainees early.

 

Montana

On April 13, 2020, the Montana Department of Corrections (MDOC) acknowledged four cases of coronavirus. Two staff members and two prisoners have tested positive for the virus.

On April 1, 2020, Montana Governor Steve Bullock issued a memorandum in which he directed the Montana Board of Pardon and Parole to “consider early release” for four categories of prisoners: those age 65 or older; those with medical conditions that place them at high risk during the pandemic or who are otherwise medically frail; those pregnant inmates; and prisoners nearing their release date. This memorandum was made in accordance with Executive Orders 2-2020 and 3-2020, which declared a state of emergency in Montana due to COVID-19.

Letter from Chief Justice Mike McGrath, Mont. Sup. Ct., to Mont. Ct. of Ltd. Jurisdiction Judges (Mar. 20, 2020). Chief Justice of the Montana Supreme Court urged judges to “review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for nonviolent offenses.”

 

Nebraska

On April 4, 2020, the Nebraska Department of Corrections (NDOC) announced that one staff member died after contracting coronavirus. The staff member was working at the Nebraska State Penitentiary.

As of April 5, 2020, Nebraska had not planned to release prisoners early in response to the pandemic. When asked, Nebraska Governor Pete Ricketts explained, “You don’t get sent to prison on your first offense … These are all folks who are there for a reason, and they need to serve out their sentence.”

 

Nevada

On April 13, 2020, the Nevada Department of Corrections (NDOC) announced that five staff members had tested positive for coronavirus. They worked at Casa Grande Transitional Housing, High Desert State Prison, and Ely State Prison.

On April 13, 2020, the Nevada Sentencing Commission voted 10 to 8 to ask the state’s pardon board to consider releasing prisoners early to combat COVID-19 infections.

“To release a bunch of people to the streets with no resources, I think there would be some societal harm,” NDOC Director Charles Daniels, who opposed such a move, explained. “There are some other people doing it. Great for them. But our situation may be somewhat different … I don’t see the urgency as of right now, although it may arrive.”

 

New Hampshire

On April 15, 2020, the New Hampshire Department of Corrections (NHDOC) announced that three staff members had tested positive for coronavirus.

Helen Hanks, commissioner of the NHDOC, said that she is considering the early release of prisoners, stating, “I have a team reviewing cases and looking at the use of home confinement.”

 

New Jersey

On April 15, 2020, the New Jersey Department of Corrections (NJDOC) reported 230 staff members, and 41 prisoners had tested positive for coronavirus. Four prisoners have died to date. Additionally, four prisoners in halfway houses have also tested positive for coronavirus.

On March 24, 2020, the New Jersey Supreme Court ordered that qualifying low-risk county jail detainees and prisoners be released.

On April 10, 2020, New Jersey Governor Philip Murphy signed Executive Order 124. This order called for the temporary emergency home medical confinement for certain at-risk individuals. To qualify, prisoners must not have committed a serious offense, be age 60 or older, have high-risk medical conditions as designated by the CDC, and will complete their sentence within the next three months or have been denied parole within the past year.

The NJDOC is to prepare lists of prisoners who fall into each category to be reviewed for potential home confinement placement during the remainder of the pandemic. Prisoners prohibited from participating in the furlough program (N.J.S.A. 30:4-91.3b) and those who are subject to a sentence for which the No Early Release Act applies (N.J.S.A. 2C:43-7.2) are not eligible for medical home confinement. The State Parole Board is to make final recommendations to the Emergency Medical Review Committee. The NJDOC Commissioner then makes a final determination in line with statutory authority provided in N.J.S.A. 30:4-91.3.

Consent Order, In the Matter of the Request to Commute or Suspend County Jail Sentences, No. 084230 (N.J. March 22, 2020): In New Jersey, after the Supreme Court ordered briefing and argument on why it should not order the immediate release of individuals serving county jail sentences, the Attorney General and County Prosecutors agreed to create an immediate presumption of release for every person serving a county jail sentence in New Jersey.

 

New Mexico

As of April 13, 2020, the New Mexico Corrections Department (NMCD) had tested three prisoners and five staff members for coronavirus. All test results were negative.

On April 6, 2020, New Mexico Governor Michelle Lujan Grisham issued Executive Order 2020-021, which directed the New Mexico Corrections Department to compile a list of prisoners eligible for early release. These prisoners will receive a commutation of the remainder of their prison sentence.

To be eligible, prisoners must have less than 30 days remaining on their sentence and have a parole plan in place. In addition, sex offenders, DUI offenders, domestic abusers, those convicted of assault on a police officer, and those serving time for a firearm enhancement are not eligible.

“These measures are not taken lightly. Public safety, the safety of our staff, our inmate charges, and of our institutions is of primary concern,” said Cabinet Secretary Alisha Tafoya Lucero. “In these unprecedented times we must take action while safeguarding our communities.”

According to an NMCD official, as of April 13, eight prisoners have been released as a result of commutations.

In response to the fears New Mexico prisoners have about the COVID-19 pandemic, 22 prisoners at the Northwest New Mexico Correctional Center rioted on March 23, 2020. According to the NMCD, “The participants covered cameras and caused minor damage to a fire door and broke some pod windows.” Emergency teams responded with “less than lethal force” to subdue the riots. Both state and federal law enforcement agencies responded to the disturbance.

It should be highlighted that the Associated Press reported there were 300 prisoners involved in the riot, which included throwing rocks at law enforcement over a perimeter fence. The ABQ Journal report indicated that one prisoner was sent to the hospital because of injuries.

 

New York

On April 15, 2020, the New York Department of Corrections and Community Supervision (NYDCCS) reported 664 staff, 160 prisoners and 26 parolees testing positive for coronavirus. To that date, one staff member, five prisoners, and four parolees had died.

On March 27, 2020, NYDCCS was ordered to release low-level technical parole violators from local jails. Following a case review, those in jail for parole violations were released upon verification of a residence and the determination that their release would not threaten public safety. NYDCCS projections indicate this will affect 1,100 people, including 400 detainees from New York City and 700 others throughout the rest of the state.

New York City Mayor Bill de Blasio has made several announcements about the early release of prisoners from local jails. On March 29, 2020, he announced the release of 650 nonviolent prisoners at Rikers Island. These prisoners were serving sentences of less than 12 months. On March 31, 2020, he announced the release of 900 prisoners. And on April 10, 2020, he declared that over 1,500 in total had been released.

People of the State of New York, ex rel., v. Cynthia Brann, No. 260154/2020 (Sup. Ct. NY Mar. 25, 2020); see also Frank G. Runyeon, “NY Judges Release 122 Inmates as Virus Cases Spike in Jails,” Law360 (March 27, 2020). In a habeas petition brought by the Legal Aid Society, a Justice Doris M. Gonzales ordered the release of 106 individuals currently held at Rikers Island on a non-criminal technical parole violation. These individuals were selected in the petition by virtue of their age and/or underlying medical condition.

Jeffrey v. Bran, (Sup. Ct. NY Mar. 26, 2020). See Press Release, Redmond Haskins, Legal Aid Wins Release of 16 Incarcerated New Yorkers at a High Risk of COVID-19 from City Jails (Mar. 26, 2020): In a habeas petition brought by the Legal Aid Society, a Justice Mark Dwyer ordered the release of 16 individuals currently held at Rikers Island on pretrial detention or parole violation. These individuals were selected in the petition by virtue of their age and/or underlying medical condition.

 

North Carolina

On April 15, 2020, the North Carolina Department of Public Safety (NCDPS) announced it had tested 183 prisoners. Of these, 46 had tested positive for coronavirus and 137 had tested negative.

On April 13, 2020, the NCDPS announced – as an “extraordinary measure – it would be releasing eligible prisoners early to mitigate the risk of COVID-19 in the state’s prisons. NCDPS was evaluating approximately 500 prisoners for early release. It was considering these categories of prisoners:

• Pregnant offenders;

• Offenders age 65 and older with underlying health conditions;

• Female offenders age 50 and older with health conditions and a release date in 2020;

• Offenders age 65 and older with a release date in 2020;

• Offenders already on home leave with a release date in 2020; and

• Offenders on work release with a release date in 2020.

In addition, the NCDPS has been awarding additional good conduct time credits to reduce its prison population. Prison officials said that on March 2, 2020 prisoners were released. Reports were not clear if these numbers included only early releases or if they also included prisoners who were already scheduled for release.

 

North Dakota

On April 9, 2020, the North Dakota Department of Corrections and Rehabilitation (NDDOCR) reported no inmate or staff positives to coronavirus testing. A total of 25 prisoners had been tested.

Unlike many other correctional agencies, the NDDOCR announced on its website that its “prior maximum operational capacity levels are not suitable during a pandemic.” As such, to “minimize the introduction of and limit the spread of COVID-19, the ND DOCR is working to create opportunities to transition eligible residents with upcoming release dates and/or serious medical conditions to the community. Some of the residents are being released through parole and others are being transitioned to approved locations to finish their sentence in the community.”

On March 21, 2020, the North Dakota parole board announced it had granted early release dates to 56 prisoners who had applied. Sixty prisoners had applied for early parole.

 

Ohio

On April 15, 2020, the Ohio Department of Rehabilitation and Corrections (ODRC) reported that 273 prisoners have tested positive for coronavirus. Additionally, 159 staff members have also tested positive, with three dying from the virus.

On April 3, 2020, Ohio Governor Mike DeWine announced he had recommended the release of 38 prisoners. All prisoners were convicted of nonviolent offenses.

On April 14, 2020, the Correctional Institution Inspection Committee approved 141 prisoners for early release. All prisoners were within 90 days of their projected release dates, and none were convicted of sexual or violent offenses.

Press Conference, Ohio Chief Justice Maureen O’Connor and Gov. Mike De­Wine (March 19, 2020); see alsoWLWT5, “Release Ohio jail inmates vulnerable to coronavirus, chief justice urges” (March 19, 2020): O’Connor urged “judges to use their discretion and release people held in jail and incarcerated individuals who are in a high-risk category for being infected with the virus.”

 

Oklahoma

On April 15, 2020, the Oklahoma Department of Corrections (ODOC) announced that one prisoner and eight staff members had tested positive for coronavirus. Additionally, 124 prisoners are in quarantine and one inmate is in isolation (in hospital).

On April 13, 2020, Oklahoma Governor Kevin Stitt commuted the prison sentences of 404 prisoners currently incarcerated in the state’s prisons. While it was initially announced these releases were expected to take place on April 16, the Pardon and Parole Board said the governor was mistaken. As it turns out, some prisoners who received commutations were also serving time for additional offenses, which will keep them in prison.

Following this erroneous announcement, Stitt’s office announced 48 additional prisoners will have their sentences reduced.

“In these unprecedented times, we must take action while safeguarding our Department of Corrections staff, inmate population and the public,” Stitt said in a written statement.

The Oklahoma legislature has several proposed bills pending, but they are on hold.

 

Oregon

On April 15, 2020, the Oregon Department of Corrections (ODOC) announced that 13 prisoners and staff have tested positive for coronavirus. Ten of those who tested positive were staff members.

In Oregon state prison, there are two primary mechanisms for early release: compassionate release and clemency. To be considered for compassionate release, prisoners must either be 1) suffering from a terminal illness or 2) elderly and permanently incapacitated in such a manner that the individual cannot move from place to place without the assistance of another person.

Executive clemency is at the pleasure of Oregon Governor Kate Brown. To date, neither Brown nor the ODOC has stated that they are considering mass early releases.

On March 27, 2020, the Oregon Supreme Court ordered trial-level judges to collaborate with law enforcement and community corrections agencies to determine which prisoners could be released early.

On April 13, 2020, Governor Brown received information about 2,836 prisoners the ODOC determined met the criteria for early release. Specifically, prisoners with approved residences, who are older, and those at high risk for coronavirus infection. A day later, she held a press conference at which she told reporters she had no plans to release prisoners early.

“The question was, do I plan to early release adults in custody as a result of the COVID-19 crisis? The answer is no,” said Governor Brown.

 

Pennsylvania

On April 15, 2020, the Pennsylvania Department of Corrections (PADOC) reported 24 staff members and 17 prisoners tested positive for coronavirus. One inmate has died. Additionally, 105 staff members and 53 prisoners have tested negative for the coronavirus. To mitigate the spread, the PADOC has implemented a system-wide lockdown.

In response to the April 10, 2020, announcement by Pennsylvania Governor Tom Wolf in which he announced that certain prisoners would be released early for a limited period, the PA DOC announced efforts at reducing its prison population. These steps include:

• Furloughing paroled individuals from centers to home confinement;

• Working with the parole board to maximize parole releases;

• Reviewing parole detainers for those in county jails and state prisons;

• Expediting the release process for anyone with a pending home plan; and

• Reviewing prisoners within the state prison system who are beyond their minimum sentence.

According to Governor Wolf, eligible prisoners include those scheduled for release within the next nine months and vulnerable prisoners who are already within 12 months of release.

 

Rhode Island

On April 15, 2020, the Rhode Island Department of Corrections (RIDOC) reported five staff members testing positive for coronavirus. No prisoners have tested positive, according to the RIDOC.

The Director of the Rhode Island Department of Corrections is submitting weekly lists of people being held on low bail amounts to the public defender’s and attorney general’s offices for assessment in efforts to have them released. (Rhode Island is one of a handful of states that do not have jails, meaning pretrial detainees are held in prisons.) The RIDOC is also evaluating prisoners with less than four years remaining on their sentences to see if they can award extra good time and release them early.

On April 3, 2020, the Rhode Island Supreme Court approved the release of 52 prisoners who had less than 90 days remaining on their sentences. The Rhode Island Public Defender’s Office had filed an emergency petition seeking review. Those released included prisoners convicted of crimes such as larceny, shoplifting, and drug possession.

 

South Carolina

On April 12, 2020, the South Carolina Department of Corrections (SCDC) reported 29 staff members testing positive for coronavirus. No prisoners have tested positive, according to the SCDOC.

As of April 15, 2020, neither South Carolina Governor Henry McMaster nor the SCDC have made any announcement concerning the early release of prisoners.

Memorandum from Chief Justice Beatty, Sup. Ct of S.C to Magistrates, Mun. Judges, and Summary Ct. Staff (March 16, 2020): (The Chief Justice instructed that “any person charged with a non-capital crime shall be ordered released pending trial on his own recognizance without surety, unless an unreasonable danger to the community will result or the accused is an extreme flight risk.”)

 

South Dakota

On April 15, 2020, the South Dakota Department of Corrections (SDDOC) reported that two prisoners have tested positive for coronavirus. One inmate was housed at the Women’s Prison in Pierre, while the other was housed at the Jameson Annex to the South Dakota State Prison. In response to the first positive test (on April 9), nine women escaped from custody. There are also reports of numerous jail detainees escaping from custody due to COVID-19 concerns.

On April 9, 2020, Governor Kristi Noem signed Executive Order 2020-14, suspending the requirement that individuals on parole who test positive for drug use be remanded to custody. While parolees can still be returned to custody, parole officers are now directed to seek lesser sanctions which can keep parolees in the community.

 

Tennessee

On April 11, 2020, the Tennessee Department of Corrections (TDOC) reported two prisoners and 19 staff members have tested positive for coronavirus. The prisoners are housed at the Turney Center Industrial Complex, and the staff members are located at the Northwest Correctional Complex and the Bledsoe County Correctional Complex.

As of April 15, 2020, Tennessee has not announced plans to release prisoners early. According to the TDOC website, “There are no plans for early release from TDOC prisons at this time because of the coronavirus.”

Emergency Pet. to Supplement Court’s Order With Directives Necessary to Reduce COVID-19 Public Health Risks Associated with Tennessee Jails, Juvenile Detention Centers and Prisons, In re COVID-19 Pandemic, No. ADM2020-0428 at 2, (Tenn. Mar. 25, 2020): The Chief Justice of the Tennessee Supreme Court ordered local judges to come up with plans for reducing their prison and jail populations by March 30th.

 

Texas

On April 15, 2020, the Texas Department of Criminal Justice (TDCJ) reported that 138 staff members and 284 prisoners had tested positive for coronavirus. Additionally, 11,111 prisoners have been placed on medical restriction due to potentially coming into contact with either a staff member or inmate who is positive or pending a coronavirus test. An additional 326 prisoners have been placed in medical isolation due to being “sick or contagious,” according to the TDCJ’s website.

On March 29, 2020, Texas Governor Greg Abbott issued Executive Order GA 13, prohibiting the early release of jail detainees indicted or convicted for violent crimes. To be released, these detainees must pay their bonds.

On April 10, 2020, state District Court Judge Lora Livingston issued a ruling temporarily blocking Governor Abbott’s executive order. The lawsuit was brought by the NAACP of Texas, various criminal defense organizations, and several Harris County misdemeanor judges.

From Ryan Autullo, “Travis County judges releasing inmates to limit coronavirus spread,” Statesman (Mar. 16, 2020): Travis County has begun releasing some defendants in custody with underlying health conditions, to reduce the potential spread of COVID-19 in the county’s jails. After Austin saw its first positive cases of COVID-19, judges in the county nearly doubled its release of people from local jails on personal bonds, with one judge alone reversing four bond decisions after “balancing this pandemic and public health safety of prisoners against what they’re charged with.”

 

Utah

On April 15, 2020, the Utah Department of Corrections (UDOC) reported nine prisoners have tested positive for coronavirus.

The Utah Board of Pardons and Parole (BOPP) has announced that they are considering early releases to mitigate the spread of coronavirus. To be considered, the UDOC must refer a prisoner to the BOPP. Initially, these referrals were being made for those within 90 days of their release, but because of the ongoing spread of COVID-19, this timeline has been increased to 180 days. As of March 26, 2020, the UDOC had referred approximately 80 prisoners to the BOPP for case reviews. The UDOC clarified that these prisoners were within several weeks of their release and had already received their parole release dates.

Order, Administrative Order for Court Operations During Pandemic (Utah Mar. 21, 2020): The Chief Justice of the Utah Supreme Court ordered that for defendants in-custody on certain misdemeanor offenses, “the assigned judge must reconsider the defendant’s custody status and is encouraged to release the defendant subject to appropriate conditions.”

 

Vermont

On April 14, 2020, the Vermont Department of Corrections (VTDOC) reported 206 completed tests for coronavirus. Out of these, 174 tests were negative, and 33 tests positive. A total of 43 prisoners are currently in medical isolation, while an additional nine prisoners have been released from medical isolation. Additionally, 18 staff members have tested positive for coronavirus.

On March 26, 2020, the VTDOC announced it had released about 200 prisoners since late February in response to the pandemic.

 

Virginia

On April 15, 2020, the Virginia Department of Corrections (VADOC) reported 53 inmate and 34 staff positives for coronavirus. One inmate had died. Forty of the prisoners remained housed in VADOC custody, while six are in hospitals.

While Virginia abolished parole in 1995, on April 8, 2020, VADOC officials said that Virginia Parole Board members are “working overtime” to review parole applications for geriatric and longer-term prisoners who still qualify in light of the COVID-19 pandemic. Only prisoners who have served at least five years and are 65 or older or prisoners who are at least 60 and have served at least ten years qualify for geriatric parole. In total, 2,351 Virginia state prisoners are eligible. Still, Brian Moran, Virginia’s secretary of public safety, said that 90 percent to 95 percent of those are incarcerated for violent offenses and are disfavored for parole.

In March and April 2020, Norfolk jail officials announced they had released about 250 jail prisoners in response to the pandemic.

 

Washington

On April 15, 2020, the Washington Department of Corrections (WDOC) reported 202 prisoners tested negative for coronavirus, 11 prisoners tested positive, and 44 lab results remained pending. A total of 257 tests had been completed to date. Of these, 144 prisoners had been isolated (separation of prisoners due to being symptomatic), and 1,099 prisoners had been quarantined (separation of prisoners due to possible exposure).

Additionally, 14 staff members had self-reported to have been infected, and 11 prisoners had self-reported. Details were murky due to how the WDOC reports this data.

In response to the pandemic, a prison disturbance was reported by the WDOC. According to a press release, on April 8, 2020, approximately 100 prisoners — one-fourth of the inmate population — at the minimum-security Monroe Correctional Complex “demonstrated in the recreation yard.” Prisoners in two housing units also set off fire extinguishers, giving the appearance of smoke. The Emergency Response Team (ERT) was activated. Due to only half of the prisoners following ERT directives, sting balls were fired into the area. WDOC reports no injuries.

On April 13, 2020, Washington State Governor Jay Inslee announced that the state plans to release up to 950 prisoners early in the effort to combat coronavirus spread in his state’s prisons. Prisoners who have little time remaining on their sentences will be granted commutations, while others will be released through a specialized reentry program.

Am. Order, In the Matter of Statewide Response by Washington State Courts to the Covid-19 Public Health Emergency, No. 25700-B-607 (Wash. Mar. 20, 2020): Chief Justice Stephens ordered judges not to issue bench warrants for failure to appear, “unless necessary for the immediate preservation of public or individual safety” and “to hear motions for pretrial release on an expediated basis without requiring a motion to shorten time.” Additionally, for populations designated as at-risk or vulnerable by the Centers for Disease Control, the COVID-19 crisis is presumed to be a material change in circumstances to permit amendment of a previous bail order or to modify conditions of pretrial release.

 

West Virginia

As of April 15, 2020, the West Virginia Division of Corrections and Rehabilitation (WVDCR) reported no cases of staff or prisoners being infected with coronavirus.

In March, the WVDCR reduced its prison population by over 100 people. The releases included 70 people who were serving short prison terms for “parole-related sanctions.” Additionally, about 70 prisoners who were eligible for weekend furloughs have had their furloughs extended to two weeks. Lawrence Messina, WVDCR spokesperson, said that officials are considering expanding furloughs for other work-release prisoners.

 

Wisconsin

On April 15, 2020, the Wisconsin Department of Corrections (WDOC) reported tested 96 prisoners. Of these, 10 prisoners tested positive, 80 negative, and six tests are pending. Of the five positive inmate tests, eight were from Oshkosh Correctional Institution, and two were from Columbia Correctional Institution. Additionally, 14 staff members have tested positive. Six work at the Milwaukee Secure Detention Facility, four work at the Columbia Correctional Facility, and one works at the Waupun Correctional Facility. Three additional staff positives occurred at the Community Corrections Region 3 (Milwaukee) facility.

On March 20, 2020, Governor Tony Evers issued Emergency Order #9. This order implemented a moratorium on new admissions to state prisons and juvenile facilities. This moratorium took effect March 23, 2020, and can be rescinded either by the governor or by an order from the Secretary of the Department of Corrections.

The WDOC has relatively limited authority to release prisoners prior to their mandatory release date. The WDOC has announced three possible mechanisms for the early release of prisoners:

 Wis. Admin. Code DOC § 304.02: Inmates convicted of offenses prior to December 31, 1999, may be released to reduce overcrowding. This is a parole mechanism which is termed Special Action Parole.

Wis. Admin. Code DOC § 302.65: Inmates within 12 months of their release from the confinement portion of a bifurcated sentence imposed between 2009 and 2011 may be eligible for early release. This is termed Certain Earned Release and is limited to nonviolent inmates.

Wis. Admin. Code DOC § 302.113(9g): Elderly inmates and those who suffer from extraordinary health conditions may petition for early release. This requires the WDOC’s initial approval, then the approval of the sentencing court.

Wis. Admin. Code DOC § 304.06(1m): If an inmate was sentenced before December 31, 1999, they may be eligible for parole release based on extraordinary circumstances. The Wisconsin Parole Commission makes this decision.

 

Wyoming

As of April 15, 2020, the Wyoming Department of Corrections reported one staff member at the Wyoming Women’s Center tested positive for coronavirus.

As of April 2020, Wyoming had not planned to release any prisoners early from the state’s prison system due to COVID-19 concerns.

Order Adopting Temporary Plan to Address Health Risks Posed by the COVID-19 Pandemic, In the Matter of the Wyoming Supreme Court’s Temporary Plan Regarding COVID-19 Pandemic (Wyo. Mar. 18, 2020): The Chief Justice instructed judges to issue summonses instead of bench warrants unless public safety compels otherwise.

Conclusion: The Death March Continues as The Plague Ravages Prisons Nationwide

In the last four months, the world has reeled from the onset of the novel coronavirus. As we go to press, over 188,000 people worldwide have died from COVID-19. And the number keeps growing.

This pandemic has spurred new ways of thinking and doing.

Two short months ago, I attended a reception at the United States District Court for the Eastern District of California. The event was for University of California, Davis School of Law students to greet federal judges and explore judicial externship opportunities.

One event, in particular, struck me. As I was speaking to a federal judge, a more senior federal judge walked up and reached to shake the hand of the other. He stopped himself and instead greeted his long-time colleague by tapping the instep of each foot with his friend. This was the time before people had to be wary of whom they passed in the grocery store, or many started simply refusing to leave their homes.

While preparing this article over a mere four days, the situation inside American prisons continued to deteriorate rapidly. There were riots, misinformation, and deaths. As soon as I write the death totals, a new wave has hit. On April 15, Ohio state prisons experienced a 406 percent increase in reported prisoner infections over a four-day period. The Bureau of Prisons’ death toll has climbed virtually every day. The ink can’t dry fast enough for me to update the data on this plague.

Are these staggering increases the result of the virus spreading? Sure. But what is hidden in this calculation is that as prison officials test prisoners for the virus, more positives are known. The rate at which prisoners are being tested is very low. The actual infection rate is almost certainly drastically higher than what is reported in this article, or what prison officials publish in their official reports.

As the situation inside American prisons deteriorates, and the pervasive fear seeps inside the minds of America’s incarcerated class, prisoners feel as though they are left to fend for themselves. Riots have broken out in Kansas, Washington and Texas. In one disturbance, eight prisoners seeking medical attention – merely trying to get their temperatures checked – were pepper-sprayed by Rikers Island guards. Others have viewed escape as their only path to safety.

What has struck me most forcefully is America’s willingness to forget about those inside prisons, and politicians’ and departments of corrections’ almost uniform mantra of fake, forced competence and control.

How can it be that corrections departments have the situation under control and can manage the outbreak when both staff and prisoners are laying dead in hospitals? And while the federal Bureau of Prisons, in its recently published bulletin, “Correcting Myths and Misinformation About BOP and COVID-19,” states that prisoners’ erroneous beliefs have led to “reactions that are not grounded in science or fact,” one is left to question why prisoners’ belief systems are incorrect. Are prisoners not dying and testing positive for coronavirus at an alarming rate? And when the BOP explains, “To counter these efforts, BOP has educated as to CDC best practices regarding disease transmission and prevention,” should our fears really be assuaged? After all, even following the CDC’s guidance, the death march continues.

The only correct path forward is to release as many prisoners from custody as possible to limit the possibility of infection. Social distancing is critical. Whether a prisoner is housed in a cell or a dormitory, the threat is real and ever-present. Merely locking down prisoners to force social distancing is not enough. Who prepares the food? Who passes it out? Who passes out the mail and unlocks the doors? If we, as free Americans, can’t even protect ourselves in our homes and communities, how can prisoners hope to fare better?

In the words of Kim Kelly in The Appeal, “The entire situation is a ticking time bomb and the only sane way to halt the virus’s death march and protect the vulnerable is to release as many people as possible.”

But I’ll go one step further. While there have always been calls to release first-time, violent offenders, perhaps we should also release everyone who need not be in prison? Why is it those in minimum- and low-security prisons need to be released to protect them from COVID-19, but those in medium-security prisons don’t require the same attention? Is it right, moral, or ethical to have broad categories of prisoners excluded from protection in the form of returning home to their families (e.g., those convicted of sexual or violent offenses) regardless of how long ago or the characteristics of the crime?

In times like these, I’m reminded of 9/11. I was a freshman in high school. Upon getting off the school bus, my mom was crying as she hugged me. While we lived in Atlanta, far from the Twin Towers, Americans everywhere feared for the present and the future. The same is true now, and nowhere more so than with prisoners and their families.

In times of national crisis – or, here, global disaster – we all want the same thing: to protect ourselves and our families. While many Americans are able to hug their loved ones and try to protect themselves, prisoners and their families are left outside in the cold. The best they can hope for is to check the Department of Corrections’ websites, praying this plague doesn’t come to a prison holding their loved ones. 

 

About the Author: Christopher Zoukis, MBA, is the author of the Federal Prison Handbook, Directory of Federal Prisons, and Prison Education Guide. He is also a law student at the University of California, Davis, School of Law, where he is on the board of Students Against Mass Incarceration. He can be found online at www.prisonerresource.com

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Additional sources: Special thanks to the Prison Policy Initiative, the ACLU of Massachusetts, and Miles Pope of the Federal Defender Services of Idaho for their gracious research assistance developing this article.