June 30, 2021

Today I bring you a guest editorial from Dr. Raymond Scalettar and Steven Salky. 

Methods to Reduce Incarceration

By Steven Salky and Dr. Raymond Scalettar

Fortunately, the morbidity and mortality related to COVID-19 has declined significantly. The CDC guidelines are now less prohibitive. However, we should focus our attention on prisons as a future source of serious infections that can affect the entire population.  It is apparent that there is no such thing as social distancing in prison. “COVID-19 in Prisons and Jails in the United States” (1) focused on this serious challenge, high risk prisoners, and attempts to reduce harm in prisons and jails. In a recent Perspective article “Vaccination vs Decarceration,”[1] the authors explain why to reduce the spread of COVID-19, we must reduce excessive prison and jail populations, and offer vaccines to all those housed in such facilities. However, they do not elaborate how best to achieve this objective. We have been involved in cases by which federal prisoners vulnerable to COVID-19 can seek early release from prison via the “compassionate release.”  Here are proposals to reduce prison populations.  

First, both the federal and state executive branches need to revitalize their use of clemency to commute excessively long periods of imprisonment. There have been recent recommendations by a bi-partisan group of advocacy organizations that the White House should reactivate the process for considering applications for federal clemency.  This effort was deactivated during the Trump administration and there is now a backlog of more than 15,000 cases. As was demonstrated during the 2014 Clemency Initiative used by the Obama Department of Justice,[2] there are thousands of non-violent federal drug offenders serving sentences that are much longer than would be imposed today. The President should consider many of these people for immediate release through a grant of clemency. But federal prisoners are only a small fraction of drug offenders serving disproportionately long sentences; larger numbers of low-level drug offenders are serving time in state prisons. Governors should also make use of their power to grant clemency. Although the number of sentence commutations granted by many governors in 2020 exceeded those granted in prior years, the numbers remain paltry, especially when compared to the imperative created by the pandemic.

1    Hawks, L, Woolhandler,S, McCormick,D. Covid-19 in Prisons and Jails in the United States. jamainternmed 2020; 180(8);1041-1042

[1]     Barsky, BA, Reinhart, E., et al, Vaccination pus Decarceration---Stopping Covid-19 in Jails and Prisons N Engl J Med 2021;384;1583-85.

[2]     U.S. Dep’t of Justice, Office of the Inspector Gen., Review of the Dep’t Clemency Initiative (2018), available at https://oig.justice.gov/reports/2018/e1804.pdf.

Second, the states need to catch-up with the federal law regarding “compassionate release.” A provision of the federal First Step Act[1] provides a mechanism for releasing persons suffering from a terminal illness, medical conditions making them vulnerable to severe illness or death from COVID-19, or serious physical or cognitive impairment that substantially diminishes their ability to care for themselves in prison. The federal compassionate release process requires the judge to consider many factors, including the seriousness of the offense and the risk of public danger, in deciding whether to reduce a previously imposed sentence or to order immediate release. Favorable compassionate release decisions have resulted in the release of several thousand federal prisoners since early 2019. A few states have either adopted or are considering the adoption of compassionate release statutes similar to the federal model. However, many states have outdated medical parole laws that unnecessarily restrict releasing medically vulnerable state prisoners who have served substantial portions of their sentences and are no longer threats to society. To help reduce the spread of COVID, all states should give judges the right to consider a medically vulnerable prisoner’s application for early release.

Third, we must expand the use of pretrial electronic monitoring as an alternative to pretrial detention. Pretrial electronic monitoring has proven extraordinarily effective at not only ensuring that people charged with a crime return to court and remain employed and productive while they await the court process, but it reduces the overcrowding of city jails, which has made many of them our worst COVID “hot spots.” Given the relatively small cost of electronic ankle bracelets, our national reliance on a system of money bail, which results in the unnecessarily costly pretrial detention of the poor while they await ever lengthened court processing, is outdated and unwise.

Finally, we must preserve the expanded use of home detention at the conclusion of a prison sentence. The Bureau of Prisons has statutory authority to place a prisoner in home confinement for the concluding portion of their sentence.[2] The Attorney General was authorized by the CARES Act in March 2020[3] to expand the use of home confinement in response to the pandemic. Subsequently, tens of thousands of federal prisoners have returned home earlier than previously scheduled. This has reduced overcrowding and the related spread of COVID-19 and has returned prisoners home early to help support their families. This temporary measure should be extended, instead of returning those now confined at home to federal prisons.  Indeed, the success of the use of home confinement for greater periods at the conclusion of a prison sentence should be a model for expanding the use of home detention at the state level.

Steven Salky, J.D., Resource Counsel to the Compassionate Release Clearinghouse, Raymond Scalettar, M.D. DSc., Medical Consultant to the Compassionate Release Clearinghouse, Clinical Emeritus Professor of Medicine, George Washington University School of Medicine and Health Sciences

[1]   18 U.S.C. § 3582(c)(1)(A).

[2]     18 U.S.C. § 3624(c)(2).

[3]     See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”).