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Amid Pandemic, Activists Call Prison Crowding Cruel And Unusual Punishment

Marc Levy
In the past month, about 560 of 44,500 people have been released from Pennsylvania prisons, according to data from the state Department of Corrections.

Pennsylvania corrections secretary John Wetzel said earlier this week that his department is taking steps to reduce the state’s incarcerated population, in an effort to limit the spread of coronavirus behind bars. But prison-reform advocates argue that more dramatic action is needed to remedy conditions that they say amount to cruel and unusual punishment.


Wetzel told reporters Wednesday that, for now, his agency will focus on speeding up the parole process as the main release valve for crowded prisons, where two inmates and eight employees had tested positive for COVID-19 as of Thursday. Wetzel estimated that approach could free hundreds of the state’s roughly 44,500 prisoners. But he said that ultimately, he is looking to the legislature to create more opportunities for release.


“Make no bones about it: Part of our response to this has to be having less people,” Wetzel said.


The secretary said lawmakers have considered allowing the release of people near the end of their sentences. But for those who remain in correctional institutions, he said, the pandemic means spending more time in their cells and less time in communal spaces. Wetzel said that prisons can isolate people who test positive for the virus, but he acknowledged that most inmates still share cells.


“Some of our older places with these big huge housing units, that’s more of a challenge,” he said. “But we’re really trying to achieve this concept of social distance.”


Most cells measure about 10 feet by 10 feet, according to Wetzel. And critics contend that, given the size of the current prison population, such tight quarters make it impossible for inmates to keep a safe distance from one another.


Bret Grote, co-founder and legal director of the Abolitionist Law Center, said officials need to be more aggressive about freeing inmates. He and other activists say that many prisoners pose no threat to public safety – and Grote noted that even those who do, also have rights.


“Failure to dramatically reduce the population in jails and prisons is going to necessarily result in cruel and unusual punishment that cannot be remedied through any other means,” Grote said.


The Eighth Amendment to the federal constitution bans cruel and unusual punishment. And in 1993, the U.S. Supreme Court held that the prohibition extends to conditions that put inmates at risk of future serious illness – if prison officials are aware of the risk and do not do enough to stop it.


That ruling involved a prisoner who shared a cell with a chain-smoker and complained he’d been exposed to second-hand smoke. But earlier this week, Pennsylvania federal judge John E. Jones III said it could also apply to the threat of COVID-19 in immigrant detention facilities: He invoked the 1993 case in ordering the release of 10 immigrant detainees whose health makes them especially vulnerable to the highly contagious and sometimes deadly disease.


University of Pittsburgh law professor Jules Lobel said many people being held in prisons are similarly at risk because the institutions are crowded and unprepared to fight the virus. And Lobel said, many who are incarcerated shouldn’t be behind bars anyway.


“That’s been true for years, once we had the explosion of mass incarceration. But now we’re seeing the draconian effects of that with this virus,” Lobel added.


He said Pennsylvania should release elderly inmates and those with preexisting conditions, though he also thinks coronavirus underscores the need to reduce long prison sentences, especially for minor or nonviolent crimes.


“It may force a reckoning with our policies over the last 30 years that have led us to this situation,” he said.


Attorneys elsewhere share Lobel’s concern. In California, for example, the Prison Law Office filed an emergency motion in federal court last week, requesting the release of prisoners convicted of nonviolent offenses or deemed a low risk to public safety, and those whose age or health makes them vulnerable to COVID-19.


The American Civil Liberties Union of Pennsylvania also submitted an emergency petition at the state Supreme Court earlier this week. The petition urged the justices to order widespread release of inmates from county jails.


“In light of the looming public health catastrophe,” the ACLU said in its filing, “keeping such persons imprisoned where they face unnecessary health risks is inhumane” and violates their constitutional rights to due process and to be free from cruel and unusual punishment.


The Department of Corrections joined prosecutors, the state attorney general, the governor, and victim advocates Wednesday in submitting written objections to the ACLU’s petition, although the corrections department noted that county jails fall beyond its control.


In a letter, the agency wrote that it “has already taken numerous actions to reduce the movement of inmates into … prison populations and to minimize the spread of the COVID-19 virus.” It added that the Pennsylvania Department of Health had suggested the use of “cohorting” to contain the spread of the virus. Under that method, the letter said, inmates can leave their cells only in the same group of eight or fewer.


The agency also said it is screening staff members and new inmates before they enter correctional facilities. Employees who test positive are sent home, while inmates diagnosed with the virus are placed in isolation. In addition, the letter said, it is not accepting new inmates at the state correctional institutions at Laurel Highlands, Fayette, and Waymart because those prisons “house a large number of vulnerable inmates.”


All staff and prisoners, moreover, are required to wear masks at all times, and inmates also must clean their cell daily and wash their hands with antibacterial soap, according to the letter.


Corrections secretary Wetzel noted, too, that many housed in Pennsylvania prisons have no home to return to and no guarantee of adequate medical treatment outside prison.


“That sounds pretty cruel and unusual to me also,” he said.


Meanwhile, Marsy’s Law for Pennsylvania Executive Director Jennifer Riley said officials must balance the health of incarcerated people against the rights of crime victims. She said activists are ignoring the latter concern.


“They haven’t mentioned crime victims once,” she said.


A state law requires officials to listen to victims of violent crime and their family members before freeing someone on parole. Victims are also entitled to be notified of their victimizer’s release. But Riley worries these processes could break down in a rush to purge inmates.


“We’re not necessarily opposed to inmate release: We just want to make sure that victims are a part of the process,” she said.


Pennsylvania’s Victim Advocate Jennifer Storm said coronavirus won’t compromise her office’s ability to uphold victim protections.


“I have no concerns at the state level just because I know … our secretary of corrections … would not release violent offenders without consultation with my office, and without our integrated facilities being coordinated,” Storm said.


Regardless, prison-reform advocates say the last thing the justice system should be doing is threatening large numbers of prisoners – and their guards – with a death sentence.