Judges Can Protect Vulnerable Prisoners By Rethinking Jail Sentences During the Coronavirus Pandemic

By Timothy E. Zerillo*

Imagine you have to suffer through the COVID-19 outbreak in a closed building. You are in that building in close quarters with others. You cannot leave. You cannot step outside for a breath of fresh air. You cannot wash your hands or douse yourself in Purell whenever you like. You are stuck there, with others, waiting for the virus to get you.

Naturally, you would be concerned. You would hope that the others in that closed environment use good hygiene, and actively work to not spread the virus. However, even if everyone washed their hands thoroughly and were able to follow good social distancing, there is another problem. There are a steady stream of people who come into your closed environment, from the outside world. If one of those folk brings the virus inside your walls, it is inevitable that it will spread rapidly.

Of course, this is what is happening right now, in every prison across the United States. The gatekeepers to the closed environment are judges.

When you are in prison, even without the pandemic of coronavirus, you are particularly susceptible to illness. The spread of infectious disease happens quickly in prison, and medical services are often substandard. So, when a worldwide pandemic spreads through the outside world, what can be done for those who are inside?

Most notably, sentencing judges can easily reduce the population of the prisons.¹ With the population reduced, the medical and corrections staff can more adequately treat those with the virus, and reduce the exposure to others who are confined.

This is particularly true for our most vulnerable prisoners. Even with the limited information we have on COVID-19, we do know that older adults, and those with heart disease, lung disease and diabetes are at a greater risk of dying from the disease.²

We also know that even before COVID-19, the Bureau of Prisons (“BOP”) was doing a poor job of caring for its aging inmate population. In February of 2016, the Department of Justice, Office of the Inspector General submitted their revised report titled “The Impact of an Aging Inmate Population on the Federal Bureau of Prisons.” ³ The Report reveals that the BOP is unable to adequately care for its aging inmate population, who they define as those who are 50 years old and above.

It likely goes without saying, but is confirmed in the Report, that the aging BOP population costs more to treat medically than the prison population under 50 years old. These increased aging inmate costs primarily relate to the need for more frequent treatment and medication for aging prisoners.

The Report also indicate that the BOP is currently unable to provide adequate care to aging inmates. The physical infrastructure of the BOP is challenging. A shortage of lower bunk beds and handicapped accessible cells provides one of many challenging aspects to the incarceration of aging inmates.⁴

In short, the Report challenges the conclusion that the BOP can accomplish its mission as it relates to an aging inmate population. The Report finds:

“The BOP’s mission includes confining federal offenders in controlled environments that are safe, humane, cost efficient, and appropriately secure. However, the BOP’s ability to confine its aging inmate population is insufficient due to overcrowding in its institutions, as well as problems with their internal and external infrastructures…Staff and inmates told us that separate housing units, or entire institutions, would be more appropriate to house aging inmates.” ⁵

Now, the ill-equipped BOP and state correctional systems must care for aging inmates in the midst of a pandemic. Judges must take a renewed look at the correctional exposure they order for all inmates in the time of this pandemic, but particularly those older and medically vulnerable. Judges hold the keys to the prison doors. They are empowered with significant discretion. That discretion should be exercised to limit the exposure of as many vulnerable people as possible to prevent the most dire consequences of this virus.

This does not mean that anyone who has a heart condition or is older should never go to prison. If a sentencing judge finds that the public should be protected from a violent offender, for example, they will certainly send them away.

For older or medically vulnerable nonviolent offenders, the sentencing calculus must change, however. Judges should consider house arrest, bracelet monitoring programs and the use of supervised release or probation in many cases, especially for those at high risk to the virus.

We know already that older inmate populations tend to reoffend at a much lower rate than younger inmate populations.⁶ Among the aging inmate population, the rate of re­arrest is 15%.⁷ The re­arrest rate for an inmate over 60 is only 8%.⁸

Further, the re­arrest data for the older inmate population is strikingly lower depending on the offense in combination with the inmate’s age. Drug offenses, not surprisingly because of addiction issues, are the most common category of crime subject to re-arrest. Most other offenses have considerably low rates of recidivism among older inmates. For example, sex offenders among aging inmates are only subject to a 2% re-arrest rate.⁹

COVID-19 provides an opportunity for sentencing judges to look with new eyes at prison exposure for older inmates. This is especially true given that older defendants are overwhelmingly unlikely to reoffend. Judges should find other ways to punish older and medically vulnerable defendants, without exposing them to an increased risk of a death sentence by virtue of the transmission of the coronavirus.

It is equally true that sentencing fewer older prisoners to jail terms will help those who run the prisons. Corrections officers and medical staff already face overcrowded prisons to begin with. Now, they run the increased risk of bringing COVID-19 home to their families. Judges must be forward-thinking at sentencing to protect those who are particularly vulnerable, as well as those who care for them.

About the Author

*Tim Zerillo is a criminal defense lawyer in Portland, Maine. He serves on the Board of Directors of the National Association of Criminal Defense Lawyers and is a former President of the Maine Association of Criminal Defense Lawyers. Tim is the author of the book Defending Specific Crimes, published by James Publishing.

Notes

1. It should also be noted that judges can help reduce corrections populations considerably by granting bail in pre-conviction cases for defendants who are not a danger to the public and who are unlikely to flee.
2. https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html
3. https://oig.justice.gov/reports/2015/e1505.pdf ( “​DOJ-OIG Report”​)
4. DOJ­OIG​ ​Report ​at ii.
5. DOJ­OIG​ ​Report​, pp. 23­-24.
6. Statistics on the re-arrest of inmates vary wildly by jurisdiction. By one measure, an estimated 68% of all released prisoners were rearrested within 3 years among state and federal prisoners. https://www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf
7. DOJ­OIG ​Report​, p. ii.
8. DOJ­OIG Report​, p. 40.
9. DOJ­OIG Report​, p. 40.

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