By Murcel Rahimi
COVID-19 continues to spread across the nation into jails and prisons. A report published by The Justice Collaborative Institute in collaboration with Data for Progress challenges governors to make full use of their executive power to release larger numbers of people from detention in order to create less crowded conditions in the face of the pandemic.
Nearly 3 in 4 Americans have now been ordered to stay home and remain indoors, while many states have ordered non-essential businesses to close. Due to their population levels, many state prisons are unable to comply with CDC hygiene standards and are accelerating the pandemic. People who are incarcerated are more likely to have chronic health conditions than the general public. Incarcerated people tend to age faster than the general population, and their physiological age outpaces their chronological age by anywhere from 7 to 10 years, according to the report.
Nearly every state constitution permits the governor or a board of pardons to grant clemency to incarcerated people. This can be done through a couple of different ways:
Commutation—to shorten a custodial sentence, usually to time served.
Reprieve—temporary suspension of a sentence; it does not affect the amount of time served, but rather allows recipients to resume their sentences at a later date.
Furlough—allows a person to serve a portion of his or her sentence outside a prison or jail.
Compassionate Release—an umbrella term for mechanisms that release individuals “when terminal illness, advanced age, sickness, debilitation, or extreme family circumstances” outweigh continued imprisonment.
At least two forms of clemency, commutations and reprieves, allow for immediate or near-term release of people from jails and prisons, and could be particularly useful for limiting the spread of COVID-19 
if officials act now.
Commutations are useful during this time because the recipients may be released to community supervision or released outright. Those who are in a vulnerable state of health may be granted a commutation as well as those who are nearing the end of their sentence. There are many examples of granting commutations to a group of similarly-situated people at one time. In 2016, Oklahoma released 462 people in a single day using commutation.
Some states such as New York permit the governor to unilaterally grant commutations, but, in most states, the governor must consult an independent advisory board before making a decision. Governor Cuomo of New York has been under extreme scrutiny because many advocates are urging him to grant clemencies to the incarcerated people at risk of COVID-19.
Reprieves can also be utilized because governors can grant them in cases of emergencies. Although most often associated with postponing death sentences, a reprieve can also postpone or suspend a sentence of incarceration. Most states allow governors to grant reprieves any time “after conviction,” before or after sentencing.
Reprieves could prove particularly effective for reducing correctional populations to limit the spread of COVID-19 in jails and prisons. Whereas many states require the governor to refer commutation applications to an advisory board for investigation and review, governors can generally grant reprieves unilaterally, without complying with regulations or statutory procedures.
By harnessing the reprieve power, states can release vulnerable individuals within days, before facilities become overrun with life-threatening illness. Some states in which the governor appears to have unfettered authority to grant reprieves are Colorado, Connecticut, Illinois, Louisiana, New Jersey, New Mexico, New York, North Dakota, Oregon, Pennsylvania, Virginia, and Washington.
Furloughs are another release mechanism that can be used. Although furlough programs are limited or nonexistent in some places, other states have fairly broad furlough provisions that could be useful to relieve overcrowding.
The Commissioner may release individuals for the following reasons: “to permit a visit to a dying relative, attendance at the funeral of a relative, the obtaining of medical services not otherwise available, the contacting of prospective employers or for any compelling reason consistent with rehabilitation. Relief from overcrowding qualifies as a ‘compelling reason’ under the statute,12 so there is little doubt that the Commissioner has authority to release people on furlough to mitigate the spread of COVID-19.”
Compassionate release is another type of release that is available in 49 states and the District of Columbia, as well as in the federal prison system. Some variants of compassionate release include medical parole, medical furlough, elderly parole, and conditional medical release. In most jurisdictions, the parole board and/or correctional officials are responsible for making decisions regarding compassionate release.
“Our political leaders have ample tools at their disposal to avoid humanitarian disaster in prisons and jails, but they must act now,” said Ben Notterman, a fellow at the NYU School of Law Center on the Administration of Criminal Law and a co-author of the report.
Along with the report is a state by state breakdown which outlines the scope of each governor’s clemency power and additional regulations they may be subject to.
The full report can be accessed here along with the published appendix which outlines every state’s clemency policy.
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