States Work to Reduce Prison and Jail Populations in Effort to Combat Coronavirus

As we detailed in our April 9th post, the Bureau of Prisons is working to prevent the coronavirus from further spreading throughout the federal prison system by identifying and transferring to home confinement inmates that meet certain eligibility criteria. State corrections systems are implementing similar measures to lessen prison populations. This post summarizes efforts taken to date by Ohio, Pennsylvania, Michigan and West Virginia to reduce their respective prison populations.

Ohio

Governor Mike DeWine, acting in conjunction with the Ohio Department of Rehabilitation and Correction, has made a significant effort to reduce Ohio’s prison population.

On April 3rd, Governor DeWine announced that he had recommended the early release of 38 prison inmates that fell into two categories: 1) Pregnant inmates and those who are recently postpartum; and 2) Inmates who are vulnerable to COVID-19 at 60 years old or older and have 120 days or less remaining on their sentence. Although Governor DeWine did not go so far as to order the release of inmates satisfying these criteria, he sent letters to all judges encouraging that they grant early release for such inmates. Where early release has been granted, the Ohio Department of Rehabilitation and Correction will work with courts to hold hearings remotely.

On April 7th, Governor DeWine recommended the early release of 167 non-violent inmates. These inmates include 141 minimum-security inmates who are within 90 days of completing their sentence, as well as 26 inmates aged 60 or older who are especially vulnerable to the virus. None of these inmates have warrants from other states, prior denials of release, or serious prison violations.

While the Governor is taking action to reduce the prison population, inmates can also take matters into their own hands. Ohio Revised Code § 2967.07 permits prisoners to request clemency from the governor. While this statute is generally utilized to request a pardon, it also allows inmates to apply for commutation or reprieve from their sentence. If an inmate is successful in their request for a reprieve, the inmate would be released from prison and the sentence would be postponed.

Other mechanisms for release include the filing of a Motion for Appellate Bond or Judicial Release. Pursuant to R.C. 2953.09(A)(2)(a), the court of common pleas may suspend the execution of a sentence or judgment pending appeal. Pursuant to R.C. 2929.20, an inmate may request judicial release, or early termination of their prison sentence, through the court of common pleas if certain minimum criteria has been met.

Pennsylvania

On April 10th, Governor Tom Wolf signed an executive order for the release of up to 1,800 inmates in Pennsylvania correctional institutions.

Prior to that order, the Pennsylvania Department of Corrections had acted under its authority to stem the effect of a viral outbreak within its institutions by taking various measures to reduce prison populations, including maximizing parole release, expediting the release of individuals with a pending home plan and considering for early release inmates who had served beyond their minimum sentences.

At the local level, county jails have made independent assessments and determinations as to how to reduce the risk of an outbreak. By the end of March, the Allegheny County Jail had released over 700 inmates, which reduced the facility’s inmate population by approximately 30 percent. The inmates selected for release were deemed either non-violent or of the demographics most vulnerable to COVID-19 infection.

As advocacy groups, professionals, experts, and some politicians continue efforts to dramatically reduce prison populations, Governor Wolf’s Reprieve of Sentence of Incarceration Program is the first statewide act to initiate systematic change. Under the program, vulnerable individuals who would otherwise be eligible for release within the next twelve months, or any inmate who is within nine months of their minimum eligibility release date may be considered for transfer to community corrections centers, community corrections facilities, or home confinement. Furthermore, under the program, the Department of Corrections must confer with the sentencing court, the District Attorney, and the Attorney General before recommending an inmate for reprieve. Final approval for reprieve under the program rests with Governor Wolf.

Michigan

On March 30th, Governor Gretchen Whitmer detailed “risk-reduction protocols” to protect vulnerable MDOC faculty and incarcerated populations in an effort to curb the spread of the coronavirus. In addition, Governor Whitmer signed an executive order that temporarily suspended transfers into and from MDOC facilities until risk-reduction protocols were adequately in place, and suspended provisions of the Jail Overcrowding Emergency Act to allow local officials more flexibility in releasing vulnerable populations who do not pose a threat to public safety.

As of April 12th, some 414 Michigan inmates had tested positive for COVID-19, out of the more than 41,000 inmates in Michigan’s 31 correctional facilities. The Michigan Department of Corrections now sends inmates who test positive to one of two facilities for quarantine. MDOC says it has taken multiple steps to limit the spread of COVID-19, including no longer allowing visitors, reducing the size of groups going to food services and exercise yards, implementing a partial lockdown in particular facilities with numerous COVID-19 cases, and distributing cloth masks and cleaning materials for sanitizing surfaces.

West Virginia

There have been no positive cases of COVID-19 for any inmates or staff members in West Virginia’s regional jails or prisons. As a result, Governor Jim Justice has deferred to the leadership of the West Virginia Division of Corrections and Rehabilitation on whether to release inmates early or to transition certain eligible offenders to home confinement. However, in an effort to reduce the risk of widespread coronavirus infections, state courts, jails, and prisons have collaborated to eliminate over-capacity status in eight of the state’s ten regional jails. In the past ten days nearly 600 inmates, out of a total population of more than 10,000 in West Virginia jails and prisons, have been released.

With continued pressure mounting on relevant state actors, additional executive and legislative action to address the housing and safety of state inmate population are likely. Attorneys at Flannery | Georgalis stand ready to assist inmates and their families in navigating these processes, and in appropriate circumstances facilitate inmates transfer away from state and county correctional institutions.