COVID-19 & Justice

Op-Ed: Reprieves May Be the Smartest Way to Get Virus-Vulnerable People Out Of U.S. Prisons

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Written by WLA Guest

By Ben Notterman

Recent polling shows strong bipartisan support for releasing aging or vulnerable incarcerated people during the current public health crisis. This is for good reason. Warehousing people in crowded prisons during a pandemic is not only inhumane, it also accelerates transmission to the general public, since staff and officials come and go from these facilities every day.

Preventing further spread of COVID-19 calls for expansive use of executive clemency. A small handful of governors have granted commutations during the pandemic, most notably in Kentucky and Oklahoma, where together almost 1,400 people could soon be released. Yet, even that figure is likely insufficient to quell the virus’s increasing spread in those states’ correctional facilities. Broader action is necessary—now.

As it happens, most governors can leverage another form of clemency, which may be more suitable for the unique situation our nation faces.  That form is the reprieve.

A reprieve temporarily suspends a sentence, usually for a specific period of time. Although historically associated with death penalty cases, reprieves may be granted to those serving any sentence of confinement, too. Indeed, the reprieve power exists in virtually every state, including those without capital punishment.

Unlike commutations, reprieves do not shorten sentences, but rather postpone them until they are safe to resume. Reprieves thus strike a unique balance: preserving the full measure of the original sentence, if that is what a governor wishes, but without unjustly amplifying punishment through exposure to a deadly virus. Those released will return to serve out the rest of their sentence, although governors may instead choose to grant commutations to those who comply with the terms of their temporary release.

There are several practical advantages to using reprieves at this time. Whereas commutations may require compliance with a statutory application process and the approval of an independent advisory board, governors in many states—including California, Illinois, and New York—can grant reprieves unilaterally, without threat of judicial review.

Some states also exclude certain offenses from eligibility for commutations, but not so for reprieves. In California, for example, the Supreme Court must approve commutations for those convicted of more than one felony; but Governor Newsom can grant reprieves to anyone sentenced to a crime, for any reason, without consulting anybody.

Granting reprieves en masse is not without recent precedent. Last week, Pennsylvania Governor Tom Wolf established a plan to do exactly that. Governor Wolf’s Reprieve of Sentence of Incarceration Program provides a useful template for other states—albeit one that could be improved and expanded.

Under the program, Pennsylvania’s department of corrections will identify individuals who are within twelve months of release and whose age or health make them particularly susceptible to complications from COVID-19. Also eligible are people within nine months of release, regardless of age or health. Those released will be sent to home confinement until the governor terminates his disaster emergency proclamation.

Unfortunately, Pennsylvania’s reprieve program is moving too slowly; only 91 of 1,800 potentially eligible people were released as of April 19, 2020. The program also has broad exclusions. For instance, nobody convicted of a “personal injury crime” or a “crime of violence” will be released.

Yet the distinction between “violent” and “non-violent” crimes is more elusive and arbitrary than many realize. In New York, for example, possessing a loaded gun illegally, “loaded” meaning the owner is also in possession of bullets, is a violent felony. According to a Marshall Project survey, in more than a dozen states, if you enter a dwelling that is not yours, you can be convicted of a violent felony.

Categorically limiting temporary release to those convicted of “non-violent” crimes will needlessly impede our ability to stem COVID-19 within and beyond prison walls, regardless of what release mechanism we use.

In California, Governor Newsom appears to be of two minds when it comes to releasing people convicted of violent crimes. “I have no interest — and I want to make this crystal clear — in releasing violent criminals from our system,” Newsom said on March 23. Four days later, he announced that he had granted commutations to 21 people—all of them convicted of violent crimes.

Each of those whose sentences Newsome commuted had reportedly demonstrated substantial personal change during their years in prison.  Yet, common sense—and plenty of research—suggest that old, sick people who once acted violently will not return home to ravage their neighborhoods in the middle of a global pandemic, during which crime around the world has dropped precipitously. If there is a concern, electronic monitors can ensure that “higher risk” individuals abide by home confinement. Other familiar tools of community supervision—including phone check-ins—also remain available.

We can quickly release large numbers of people without doing so thoughtlessly. Individuals should be tested for the virus before they are released and told to self-quarantine even if not subject to home-confinement. They must have safe places to go and access to essential services. But these issues are not unique to the moment. They exist whenever somebody leaves prison.

Now is not the time to obsess over administrative details. We are living through a disaster that is unprecedented in our lifetimes, and the virus continues to get an ever more deadly foothold in correctional facilities across the country. At its core, the authority to grant reprieves is an emergency power, which is how and why governors use it at the eleventh hour to avoid executing potentially innocent people. Now, governors should use that power to spare people who are not sentenced to die.


Ben Notterman, JD

Ben Notterman is a Research Fellow at the Center for Administration of Criminal Law at New York University School of Law. Before joining the Center in 2018, Notterman clerked for the Honorable William J. Martini of the U.S. District Court for the District of New Jersey, and a litigation associate with Jones Day. 

The photo above taken at the Substance Abuse Treatment Facility and State Prison, Corcoran (SATF-CSP) in April 2019, is part of a declaration in support of the emergency motion by Rosen Bien Galvan & Grunfeld and the Prison Law Office regarding COVID-19 issues brought before the federal judges in the class actions Plata v. Newsom and Coleman v. Newson. 

12 Comments

  • A dozen articles on releasing inmates from Custody. Over one hundred deaths of residents from skilled nursing facilities. Not one article asking why. No questions for public health and it’s political leaders. Not one death yet in the LA County jails or juvenile facilities and you still print these ridicules articles. Who funds you? Are you real journalists.

  • Over 40,000 people have died in the USA and of those only a small percentage I would can be identified as “incarcerated prisoners”. Yet, this site keeps pushing opportunist articles by folks determined to free everyone that is imprisoned while using the spread of Covid 19 as a weak justification. By this line of reasoning I guess all the folks serving in our military, living in close quarters aboard ships and in barracks should immediately be discharged from the military…..right? Of course this site and it’s contributors really could care less about that though.

    During all the world wars, just because this country was doing it’s part to prevent world domination by other countries did not mean law and order back home went out the window and criminals all got a get out jail free card.

    It’s unfortunate that adult and juvenile offenders who violated the rules, laws and norms of civil society are locked up, may get infected and die. It is also wrong that everyday law abiding people who are just going about their daily life and being exposed, infected and dying too.

    Luckily even the most “far left liberal and progressive” judges and political leaders in California aren’t willing to go out on a limb and down this path right now.

    There are far bigger issues at stake….the survival of the country as we know it for one. Oh…and in case you haven’t heard, there’s a raging Pandemic infecting hundreds of thousands around the WORLD with no cure in sight.

  • Face it, this site is off it’s rocker with their “Covid-19 & Justice” stuff. There is no hint of being objective in the presentation of their articles. Just article after article about ways to release prisoners from jail PERIOD. This crap about the dangers of the virus behind bars being a reason for releasing all these endangered souls is nothing but a smoke screen to this site’s long-sought agenda of freeing those who prey on society.

    I don’t know why I visit this page, maybe out of habit from when they had an occasional piece worth reading.

    Those days are long gone.

  • 255 or 38% of the deaths in LA County primarily came from Skilled Nursing Facilities. Finally some reporters are asking questions. They are regulated by the State. Inspected by the County. They are subject to Health Regulations. What I heard was;

    Poor early directions to Nursing Homes to screen employees to avoid employee to resident infection.

    Possible lack of staff at Skilled Nursing facilities. What did the County do to help. Did they try to surge resources?

    The CEO, Public Health, County Office to Emergency Management and the BOS set the priorities. What did they do to help at Skilled Nursing Facilities?

    They used the Fire Department for the Homeless. Should this Dept have been used to help. 38% looks like a failure.

    The County needs to be pressed to answer these and other questions.

  • Today 39% of Covid 19 deaths 310 occurred in Skilled Nursing Facilities or similar operations. More deaths have occurred in these facilities than infections have been reported of incarcerated persons 178. These are not deaths just infections. Based on the latest briefing no homeless have died in LA county of this virus but we are spending tens of millions to house and protect them from the virus.

    Old people are dying but LA County and the governor are housing the homeless. We had a warning early on from Washington State regarding vulnerabilities of nursing homes but noooo, we put our efforts into the homeless and the incarcerated. That is fine except that clearly was not the biggest priority.

    Who will hold these decision makers accountable. These failures rest on public health, the Board of Supervisors and the Office of Emergency Management. Is there a courageous reporter out there? When will they take these people to task?

  • Seeking the Truth and Fat Rolman – Then write that article. Stop whining.

    HMM – Maybe you should remind our country brethren down south and Midwest that there is a Pandemic. I know some of these people still do not believe viruses exist because they can’t see them. Lord help us. (They do believe in the lord)

    Seeking the truth – I don’t think the governor said lets us house the homeless at the expense of folks in nursing homes. And, yes, many people dropped the ball, but let us be honest that the biggest idiot right now, and no one dropped the ball more than he has, is our idiot president. He says the dumbest shit, and then lies about. Pulls crap out of his ass and know as much about science as a dumb first grader. My god. we are in trouble.

    • Hey gj, I see you’re back, feeling a little better after that little running your car into the ditch fiasco? Ya, ol’ gj here ran himself off the road, then tried the “i was run off the road by a pick up truck that didn’t stop, it must have been road rage!” excuse. Pulling silly stunts like that is probably what kept them from making him a full time cop, and a very angry little man.

    • So nobody in the West or East harbor the same feelings as those in the South or Midwest? You’re quite the hater, quite the bigot. Trump says lots of things he probably shouldn’t, but he did things earlier during this epidemic to keep the virus from spreading by restricting air travel into our country. No Democrat wanted to move as fast as he did, to wrapped on how it would look, whose feeling would be hurt. I get it that a hateful soul like you, and that hate pours out of just about ever post you put up, would never give him credit for it, but he saved lives. Disputing it would be silly. You have lots of issues, seek therapy. This is going to be a fun place to visit.

  • CF… I am not interested in defending the President. The data clearly indicated nursing homes were the most vulnerable. Today the Health Department finally issued more stringent guidelines regarding these facilities after more than 300 deaths. Where is the data that the homeless were more or just as vulnerable. Only one homeless person has been reported as a fatality in LA County. As of a couple days ago only 40 in New York. How much resources did they focus on nursing homes vs the homeless? Who and why did they set these priorities? Were these political decisions or decisions base on evidence and science? State and Local Governments run the health systems and disaster response. They should answer these questions.

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