Thursday, March 26, 2020


PMT: The coming tragedy in prisons and jails

People in prisons and jails are at particular risk for the spread of any contagious disease, and COVID-19 is no exception. That means that unless drastic measures are taken, thousands of incarcerated people may die unnecessarily. For President Trump and state governors, one of those drastic measures should be to immediately grant commutations to elderly prisoners and those who are otherwise vulnerable. If ever there was a time to lay aside our sense of retribution and choose mercy, this is it.

It’s no secret that prisons are difficult places during a pandemic. Many people are jammed together in small spaces, and overcrowding can easily make six-foot distancing impossible.  Normal cleaning procedures are hindered by restrictions on the possession of alcohol-based cleaning solutions and hand sanitizer, and even cleaning rags may be limited. The limited medical facilities in prisons and jails can be quickly overwhelmed. The “solution” in some places might be to isolate the most vulnerable in solitary confinement, but even that cruelty will not be effective if significant parts of a jail or prison population contract the virus.

Certainly, clemency can only be one part of a greater effort. It must be combined with other measures, including a beefing-up of staff to clean and care for the sick, and the better provision of cleaning and medical materials and resources. Just as importantly,  we need to minimize arrests and detentions, and fully utilize the release measures embedded in the First Step Act and other statutes that can allow for release of prisoners. 

But none of those population-limiting measures could be as fast and effective as clemency. All that clemency requires is a stroke of the pen; there is no need to go to court. 

Some, of course, will fear that such an effort will flood the streets with dangerous offenders. The truth is that the target of medical clemency will typically be an elderly man or woman who has served decades in prison. Public safety can be preserved by two simple measures. First, candidates should be screened for recent behavior in prison, to ensure that those with dangerous impulses remain behind bars. Second, those who are released should be required to self-quarantine for two weeks after release, to ensure that they don’t carry the virus back to their communities.

Governors (and clemency boards, in some states) can approach this in ways appropriate to their state systems. The federal clemency system, which is especially messy, needs concerted attention. President Trump should for now set aside his current approach to clemency and empanel a small group of experts to quickly get him the names of those best suited to medical clemency. It is essential that such a group work outside of the Department of Justice, which has a long history of sabotaging and delaying this kind of effort. At the same time, Trump should mandate that the Bureau of Prisons cooperate with that group in providing data and access to records.

It would be a simple task, set out in an executive order. President Trump, having defined himself as a “wartime president,” knows that bold action is needed. One of those bold actions, medical clemency, can prevent or slow a true calamity within the bars, fences and walls of our prisons.

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