The COVID-19 pandemic has not spared any aspect of American society, including the criminal justice system. Eight of the 10 biggest clusters of COVID-19 cases currently are in jails and prisons. The Cook County jail in Illinois, for example, has confirmed nearly 1,000 cases. In Ohio, more than 25 percent of the 16,000 statewide cases are in prisons, which includes the nearly 2,200 confirmed cases in the Marion Correctional Institution alone. As of April 30, 2020, 1,692 individuals in federal custody and 349 Bureau of Prisons staff have tested positive for COVID-19, and there have been 33 deaths among incarcerated people.
This troubling trend does not come as much of a surprise. Many public health experts and criminal justice advocates have pointed to the heightened risk of the novel coronavirus’s rampant spread in jails and prisons given the confined nature of those facilities and how they are operated. Physical distancing in corrections facilities is nearly impossible, especially due to overcrowding and confined quarters, and infirmaries do not have adequate resources. What’s more, individuals in prisons may be at higher risk for health complications due to the prevalence of chronic illnesses and the vulnerability of the aging prison population.
The spread of the coronavirus also is not limited to the inside of the walls of a prison or jail. Corrections officers and staff have regular interactions with those they are charged with supervising, and exposure to the virus has already affected their families and surrounding communities. Moreover, jail populations are continually revolving because they include people who are awaiting trial or have been sentenced to a relatively short term. And nearly 95 percent of those in prisons eventually return to their communities after serving their sentence.
In order to reduce the spread of COVID-19 in prisons and jail—and subsequently in communities—state and local governments and their federal counterpart must significantly and safely reduce their corrections populations. They can do so through a variety of authorities—including early parole and expanded use of home confinement—but an overlooked power that they should use more aggressively is commutations. Each governor as well as the president of the United States has the power to grant commutations that shorten the sentence of a person incarcerated within their jurisdiction, allowing them to be released early. This is a ready-made authority for situations such as the current pandemic where public health and safety dictate the need to significantly reduce corrections populations. Yet, public officials—and especially the president of the United States—are not using this tool in significant enough ways.
How public officials should utilize commutations
Commutations and other forms of clemency such as pardons have always been an important tool for remedying individual instances of injustice, such as cases of wrongful convictions or sentences that outweigh the severity of an offense. However, then-President Barack Obama, who issued 1,715 commutations over the course of his presidency, explained how commutations can also be used for large-scale changes:
By shifting the narrative to the way clemency can be used to correct injustices in the system — and reminding people of the value of second chances — I worked to reinvigorate the clemency power and to set a precedent that will make it easier for future Presidents, governors, and other public officials to use it for good.
The process of granting commutations is not necessarily free of bureaucracy. In most jurisdictions, the governor grants a commutation after review by relevant state agencies and officials. Governors in some states, such as Alabama, Connecticut, and Louisiana, delegate to or share power with a clemency board. At the federal level, the U.S. Department of Justice (DOJ) has historically been heavily involved with vetting who is eligible for commutations—a process that has come under heavy criticism from advocates, researchers, and practitioners.
Nevertheless, the ultimate power to grant commutations resides with the president and the governors, and those bureaucratic hurdles can be streamlined and possibly eliminated altogether given current circumstances and the public support for lowering jail and prison populations in response to the pandemic. For example, a recent Data for Progress poll showed that 66 percent of likely voters, including 59 percent of those who identify themselves as “very conservative,” agreed that “elected officials should be considering measures to reduce overcrowding in prisons and jails as a response to coronavirus.”
The Trump administration has lagged behind governors’ modest efforts to commute sentences
Several governors have recognized the need to utilize the power of commutations. Washington Gov. Jay Inslee (D) issued an emergency commutation that will allow for the release of more than 1,000 individuals. Oklahoma Gov. Kevin Stitt (R), who notably granted commutations and pardons to more than 1,000 people in his first year in office prior to the pandemic, commuted the sentences of more than 450 additional people. And Gov. Andy Beshear of Kentucky (D) issued commutations in early April for 186 individuals who were at high risk for serious complications or death if they contracted COVID-19; he followed that up by granting an additional 352 commutations later that month. These are significant starts, but more needs to be done to address this surging aspect of the pandemic—especially considering there are more than 2.2 million people in America’s jails and prisons.
At the federal level, President Donald Trump has not granted a single commutation in the last two months to any of the more than 170,000 people incarcerated in the federal Bureau of Prisons. This is unsurprising, since he granted a total of only 10 commutations during the more than three years he has been in office. Trump did make a splashy announcement in February that he was assembling a White House task force to ramp up the number of people to whom he would grant commutations and pardons. The White House task force would establish an independent review process outside the DOJ’s Office of the Pardon Attorney. But the task force concerningly diverges from recommendations by policy experts in that it lacks public accountability and transparency—the central issue of a recent lawsuit. Moreover, the task force has yet to clarify or announce its standards and criteria for deciding who is granted relief. Even now, more than a month into the height of the pandemic, the task force has yet to recommend a single commutation, and it is unclear if it has even held a single meeting.
The need to utilize commutations at the federal level is even more apparent in light of the slow pace of releases through other measures. For example, the DOJ announced in early April an expansion of the use of home confinement. Yet, this authority is being woefully underutilized: Less than 1 percent of the Bureau of Prisons population has been released under the new policy. This is not unique to the federal system; states also have been slow to act and have not moved with the requisite urgency.
Conclusion
In a crisis such as the current COVID-19 pandemic, officials—especially an elected leader who claims to be a criminal justice reformer—should be utilizing every available tool to save American lives, including those behind bars and the officers and staff who work in prisons and jails. Commutations are a tool that the head of every state and of the country can utilize to slow the spread of the coronavirus. Lives are at stake, and urgent action is necessary to protect the immensely vulnerable individuals incarcerated in this nation’s prisons and jails.
Ed Chung is the vice president for Criminal Justice Reform at the Center for American Progress. Lea Hunter is a research associate for Criminal Justice Reform at the Center.
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