By Norman L. Reimer, Jonathan Smith, Kevin Ring, and Steven Salky*
An abridged version of this piece was published in The Washington Post on May 7, 2020.
The spread of COVID-19 throughout our nation will not stop until we address its exponential growth in places, such as jails and prisons, where people are unable to self-distance and otherwise protect themselves from infection. Our federal and state constitutions provide a mechanism for responsibly reducing crowding in jails and prisons, which can prevent these congregate institutions from becoming “epidemiological tinderboxes” that kill their residents and employees and further spread the deadly disease.
The United States Constitution gives the President, and numerous state constitutions grant governors the power not only to pardon, but to issue “reprieves.” The pardon power, and its related power to commute sentences, is not always an attractive tool for reducing jail or prison populations, as a commutation excuses a person from having to serve the entirety of a lawfully imposed sentence of imprisonment and a pardon implies some measure of absolution. By contrast, a reprieve is simply “a temporary suspension of the execution of a sentence” and can be conditioned so as to avoid a windfall to those prisoners who do not deserve a pardon or commutation. It is a flexible tool that allows both federal and state executives to place vulnerable prisoners who are not threats to the public on supervised home detention, conditioned on their return to complete the remainder of their sentences when the health emergency is over.
The key feature of a reprieve is that it is temporary; when the reprieve expires, the execution of the sentence of imprisonment resumes. Granting a reprieve to a COVID-19 vulnerable prisoner would not be a statement that the prisoner is guiltless or rehabilitated. It instead is simply a recognition that the prisoner’s sentence was one of imprisonment, not death, and that his/her temporary release is in the public’s interest of reducing the spread of the disease.
Prisons and jails, no matter how conscientiously they follow the Centers for Disease Control recommended precautions, are unlikely to remain safer places for a significant number of prisoners than their homes. As of the end of April, eight of the top ten clusters of coronavirus outbreaks are in prisons or jails. The spread of COVID-19 within these institutions threatens the general population, as correctional officers and staff risk carrying the virus back into their communities.
Recognizing these facts, Attorney General Barr has already directed the federal Bureau of Prisons to increase its use of home detention, and several governors have already issued executive orders expanding the use of parole with home confinement as a condition. But these efforts will likely prove insufficient to stem the growth of COVID-19 within prisons and jails. The President and many governors will soon be faced with the need to release greater numbers in order both to avoid unnecessary deaths and to protect the greater public health.
Reprieves should not and need not be granted indiscriminately. We can identify prisoners who are most vulnerable — such as those over 65 with preexisting medical conditions — and easily determine whether they have places to reside where they can self-isolate and whether they are, because of the nature of their offense, criminal history, or conduct in prison, suitable candidates for a reprieve. Any number of conditions can be imposed on those granted a reprieve, including that they test negative before release or remain quarantined after release. The President or a governor could even grant incentives, such as modest reductions in sentence terms — which are often already much longer than necessary — to those who return to prison when so directed, thereby reducing non-compliance.
In most places, the constitutional authority to issue reprieves has fallen into disuse, generally displaced by pardons, commutations, and forms of parole. In the current pandemic, the responsible application of the power to grant reprieves may be an old constitutional medicine that deserves a new use.
*Norman L. Reimer is Executive Director of the National Association of Criminal Defense Lawyers. Jonathan Smith is Executive Director of the Washington Lawyers Committee for Civil Rights and Urban Affairs. Kevin Ring is President of FAMM. These three organizations sponsor the Compassionate Release Clearinghouse, for which Steven Salky, a Washington D.C. lawyer, serves as a resource counsel. The Clearinghouse assists elderly and infirm federal prisoners seeking compassionate release under the First Step Act.
