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LEGAL TOPICS
Prisoner Reentry and COVID-19: Update, Challenges and Strategies
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The COVID-19 pandemic has drastically changed the way we work, learn, and live in the community, and employing careful strategies with respect to prisoner reentry is paramount. Since the virus is easily spread from person to person and there is currently no available vaccine, fighting the spread is challenging. As stated by the Center for Disease Control and Prevention, however, the best way to prevent illness from the COVID-19 virus, is to avoid being exposed to it in the first place.

The problem is, social distancing—the widely accepted method employed to help slow the spread of COVID-19—is virtually impossible in our state prisons and jails. Incarcerated populations live, eat, sleep, and congregate in close proximity, which heightens the potential for COVID-19 to spread rapidly once introduced. Troubling, there are confirmed cases of COVID-19 in numerous jails, prisons, halfway houses, and youth facilities across the state, including staff and those in custody. According to DOC statistics, as of May 8, there were more than 800 confirmed cases of the virus among employees and inmates; 226 among and inmates, and 38 inmate deaths at state prison and halfway house facilities alone. Those numbers continue to rise as further testing proceeds. Those who are incarcerated and those physically working at the prisons and facilities, including guards and medical staff, remain at extreme and imminent health risk.

Accordingly, LSNJ and other advocates have been pushing for decision makers to consider the release of certain populations from jail and prison facilities for the sake of greater public health and to do so in a way that promotes safety, dignity, and basic human rights.

On March 23, the NJ Supreme Court signed a consent order requiring the release of certain lower risk and vulnerable populations from local jails.  The consent order suspends or commutes the sentences for low-risk inmates—those charged with third- or fourth-degree crimes or disorderly persons offenses. According to estimates, close to 2,000 people could be subject to temporary suspension of custodial jail sentences by way of the order. Those who have tested or are presumptively positive for COVID will not be released pursuant to the order and may be subject to quarantine. It is suggested by way of the order for individuals to self-quarantine for a period of 14 days after release. Individuals who report symptoms of the virus are ordered to self-quarantine for that same period of time. Individuals released subject to the order shall be provided with information regarding “social distancing,” proper hygiene practices and other emergency medical orders and information on how to obtain social services including mental health and drug treatment.

In April, LSNJ and others, separately, asked the governor to address a similar problem specifically in our state prison facilities (see LSNJ letter to the governor dated April 8, 2020​). Governor Murphy thereafter issued executive order 124, which calls for review of certain categories of inmates of state prisoners in Department of Corrections facilities for consideration of “medical furlough” or other release. An emergency medical release committee will make case-by-case assessments and will review the availability of specific community supports for those released, including a “community sponsor,” medical and social services, and verification of appropriate available housing. Further, the DOC shall assist individuals with applications for public entitlements such as SNAP and WFNJ, assist them with Medicaid applications, and provide them with temporary photo ID. For those who do not receive parole or emergency medical home confinement, the DOC shall take “all appropriate actions to mitigate” the health risks for those in custody.

Executive order 124 explicitly provides that people ineligible for furlough programs or those serving sentences pursuant to No Early Release Act provisions are not eligible for relief. This means those convicted of a laundry list of offenses: murder, manslaughter, aggravated assault, vehicular homicide, disarming a law enforcement officer, robbery, burglary, extortion, racketeering (first degree) firearms trafficking, certain sex offenses, carjacking, aggravated arson, producing or possessing radiologic devices, biological agents or chemical weapons, strict liability for drug induced deaths, and using booby traps in manufacturing or distribution facilities. 

Setting aside for the moment whether executive order 124 unfairly leaves certain vulnerable populations behind, we made a specific request for consideration to the DOC for release pursuant to executive order 124 for one of our clients. That client, is a 47-year-old male in DOC custody at a halfway house who is HIV positive, suffers from asthma, and previously had a portion of his lung removed. He is a lower-risk, nonviolent offender and has a parole eligibility date nearing 90 days away. In his words, he is “scared to death” of potentially contracting COVID-19 as he is a sitting duck in custody at a facility. His case, and those of others similarly situated, demonstrates that advocates and supporters will need to strongly consider medical release, but also consider the unique medical complications and housing needs of those released under the emergency medical provision.

Some advocates, in addition to accusing the DOC of failure to employ widespread testing (as of May 8, only 286 inmates had been tested by the DOC for COVID), underreporting the numbers of inmates confirmed with the virus, those reporting symptoms, and fatalities, claim also that DOC’s actual execution of executive order 124 is wanting. Advocates point at either slow efforts to process people in custody, or not revealing its plans pursuant to the order, or both.

To help further facilitate reentry, a bill was recently introduced to help ensure that people in custody at local jail and state facilities will be prepared for community release. Senate Bill 2331 (Cunningham/Sweeney) will require that assistance from county jails for those released must mirror that required by state facilities under the DOC, including providing criminal history information, information regarding outstanding fines and fees, information on reentry programs and available legal remedies (including expungement), and facilitating public entitlements applications and contacts. Also facilities will be required to provide a three-month supply of prescription medications; and in certain instances to coordinate with the Motor Vehicle Commission to provide non-driver photo IDs.

On July 1, 2020, the bill was signed into law.

Advocates should continue to work to ensure that those reentering the community have necessary housing, medical, and other social service supports.  ​​

7/29/2020
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