« Split Eleventh Circuit panel rules Jeffrey Epstein's victims had no rights under federal CVRA before any complaint or indictment | Main | Catching up on lots of new recent (COVID-free) sentencing and punishment scholarship »

April 14, 2020

"Governors Must Use Clemency Powers to Slow the Pandemic"

The title of this post is the title of this new memorandum from Courtney Oliva and Ben Notterman. Here is how it gets started:

Nearly 3 in 4 Americans have now been ordered to stay home and remain indoors, while many states have ordered non-essential businesses to shutter.  These steps may seem drastic, but they are being taken in order to safeguard public health during the COVID-19 pandemic.  Government actors who are truly serious about protecting people must take comprehensive and coordinated action to combat the spread of the virus.  This means acknowledging and explicitly considering the health risks of vulnerable populations — including people serving sentences in state prisons — when crafting and implementing gubernatorial responses to reduce the risk of transmission.

Jails and 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.  Likewise, the percentage of people age 55 or older in state prisons has more than tripled between 2000 and 2016.  Incarceration also has negative “knock on” effects.  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.

In some states, local government actors have responded to the growing threat of COVID-19 by taking steps to reduce jail populations and to limit the number of people being admitted to jails.  Police departments are also adjusting by issuing citation and misdemeanor summons for certain offenses.  But while local government officials have begun tackling the risk that jail populations pose, little movement has occurred to reduce prison populations and the attendant risk of transmission of COVID-19 to people serving sentences in prisons, prison employees, their families, and their communities.

If states are serious about preventing the spread of COVID-19, they must take immediate action to reduce the number of people in state prisons. While every state’s mechanisms will differ according to constitutional and statutory provisions, there are a number of actions that state actors — including governors — can take.

See Appendix for a state-by-state overview of these legal mechanisms.

April 14, 2020 at 06:22 PM | Permalink


The inmates here in Kentucky are terrified, as they sit in horribly over-crowded jails and prisons. Kentucky's prisons have long been so over-crowded that the lowest level of felony inmates (Class D inmates) all serve their time in county jails. This is a powder keg worse than nursing homes, just waiting for the Coronavirus to explode thru them. Although few now remember it, the Class D Jail Program was originally designed as the settlement for a huge and embarrassing lawsuit brought against the Ky. Dept. of Corrections by 110 of the 120 County Judge-Executives in Kentucky. At that time, only 110 out of 120 counties in Ky. had a county jail. Today, only 82 counties have county jails, and they are almost all full to overflowing. Under Ky. law, the cost of pre-trial incarceration of defendants who aren't released on bond falls to the county. But the day after a defendant is sentenced, under Ky. law the Department of Corrections is responsible for paying for defendants' incarceration. The state must pay the cost of the defendant serving his sentence. Eventually, the County Judge-Executives began to realize that most Judge's grant jail credit toward the sentence, which means that the county should be reimbursed for that time in the county jail, since it ultimately goes toward the defendant serving his sentence. Over time, these sums became huge, billions of dollars. For several years, the Legislature rebuffed the efforts of the Judge-Executives to negotiate some reimbursement for the jail credit awarded at sentencing. When the 110 Judge-Executives filed suit in Franklin County Circuit Court, they were seeking reimbursements of $110 million per year, for the past 10 years (a total of $1.1 billion). For political and financial reasons, this case was quickly settled, without the Dept. of Corrections paying any money. Rather, the Dept. of Corrections agreed that going forward, all Class D inmates would serve their sentences in county jails, and the Dept. of Corrections would pay them a per diem, to prop up the cost of operating the jails. In most Kentucky counties, the single largest cost for the county government is operating the county jail. And now, all of those inmates in Kentucky's over-crowded jails and prisons are sitting ducks for the Coronavirus.

Posted by: James Gormley | Apr 14, 2020 7:34:48 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB