The Pennsylvania Supreme Court denied a request to order the wholesale release of prisoners held by jails in Pennsylvania’s 67 counties. But in a partial win for prison-reform advocates, the Court ordered county judges and officials to do what they could to minimize the threat of the coronavirus behind bars.
The American Civil Liberties Union and others urged the court earlier this week to take up the request, using a “king’s bench” power that allows it to rule expeditiously on pressing matters. Releasing a broad range of prisoners, they argued, was the only way to prevent the highly contagious coronavirus from spreading in the close confines of a jail.
In the unanimous three-page opinion, the court declined to do so. “The immediate release of specified categories of incarcerated persons in every county correctional institution… fails to take into account the potential danger of inmates to victims and the general population, as well as the diversity of situations present within individual institutions and communities,” the ruling said.
Still, the opinion acknowledged that “[t]he potential outbreak of COVID-19 in the county correctional institutions of this Commonwealth poses an undeniable threat to the health of the inmates, the correctional staff and their families, and the surrounding communities. Accordingly, action must be taken to mitigate the potential of a public health crisis.” The order directed President Judges in each county to “limit the introduction of new inmates” – and to work with other officials to limit the threat posed to and by those already confined.
If need be, the order said, “President Judges should consult with relevant county stakeholders to identify individuals and/or classes of incarcerated persons for potential release or transfer to reduce the current and future populations of the institutions during this health crisis with careful regard for the safety of victims and their communities in general.”
ACLU of Pennsylvania Legal Director Vic Walczak welcomed the latter part of the decision. “Though the Pennsylvania state Supreme Court did not grant our request for emergency relief in county jails statewide, today’s ruling is nevertheless a big victory in the fight to keep our jails safe during this public health crisis,” he said in a statement. “President Judges in every county must take swift action to implement these orders and prevent what will otherwise be inevitable catastrophe.”
Marsy’s Law for Pennsylvania, which advocates for crime victims, released a statement saying it "applauds the Pennsylvania Supreme Court. ... Considering this fluid and unprecedented landscape we are facing, we appreciate the Court’s measured and balanced judgement in denying the ACLU’s request to release 30,000 inmates, taking victims’ rights into consideration." The ACLU and Marsy's law have been at odds over a 2019 voter referendum to enshrine consideration for victims in the state Constitution.
The court’s ruling was unsigned and represented all seven justices. But in a concurring opinion, Chief Justice Thomas Saylor wrote that while he joined in the opinion – because it directed judges to merely identify potential candidates for release – he doubted that the judicial branch had the power to unilaterally free prisoners for public health reasons. “The primary authority to release qualifying prisoners on account of a disaster emergency rests with the Governor,” he wrote in a two-page opinion joined by three other justices.
“I believe the Governor should fashion an appropriate Executive Order -- and/or the General Assembly should enact appropriate legislation -- to secure those releases deemed to be necessary by the Health Department and which are consonant with the preservation of public safety and other relevant factors,” Saylor wrote.
* This story was updated at 6:28 p.m. on Friday, April 3, to include additional comment from Marsy's Law of Pennsylvania.