Prisons, jails shouldn’t release older inmates without a plan
The COVID-19 pandemic provides us with an opportunity to examine the wisdom and utility of incarcerating our aged population.
Despite a decrease in arrests, the state and local prison populations across the country have remained unchanged over the past seven years and the average length of stay for all jails in the U.S. has increased 22%; yet, the data shows as the population ages, the risk of re-offending by older inmates is very small.
Recently, in the face of the growing spread of the coronavirus, many have argued that we should release older inmates from these “epidemiological tinderboxes” before they become infected, which has already occurred. In some instances, inmates have died from the disease. Most recently, Attorney General Frosh wrote to Gov. Larry Hogan asking him to move quickly and release an undefined “larger swath of inmates” before the coronavirus overtakes the prison system.
While this rhetoric from our elected officials and those who work in the public safety space is admirable, the question left unanswered is how we accomplish this policy. We do not want to simply release individuals who have been incarcerated for many years without a systematic assessment of their risk of re-offending, and perhaps more importantly, a plan for where and how they will live upon release. At a minimum, we don’t want them to end up in an environment susceptible to infection. There are ways to do this.
First, there should be an assessment of all incarcerated defendants over a certain age to determine their risk of re-offending. The federal Bureau of Prisons has an evidencebased risk assessment tool that is used to ascertain an inmate’s fitness for home confinement to finish a sentence. A score is determined based on a number of factors, including the nature of the original offense (non-violent vs. violent); infractions committed in prison; participation in education, drug and other programs while incarcerated; a plan for where to live once released and other factors.
The assessment should be done in an expeditious, but thorough and safe manner. On March 26, as part of the federal government’s response to COVID-19, the United States Attorney General issued a memorandum to the Director of the Bureau of Prisons directing him to prioritize and to expedite review of inmates who meet standards for release to home confinement. A second directive on April 3 to the bureau said to“move with dispatch” vulnerable inmates in three federal facilities hit hard by the coronavirus and to “expand the cohort of inmates who con be considered for home release” in other facilities where the COVID-19 affected operations. Other states like NewYork, NewJersey, California, Iowa and Pennsylvania, have adopted a similar approach and released large numbers of inmates.
Here in Maryland where our courts are operating in very limited circumstances, there is a large network of prosecutors, public defenders and probation officers who are sitting home with little to do. They could organize into teams to assess inmates using standards already in place to determine whether a defendant may be released pending trial. The assessment could be done quickly and then presented to staff at the Department of Public Safety which, in turn, could make a recommendation to the governor who has the statutory authority to remit any portion of an inmate’s unserved sentence.
A similar program was implemented by the federal government and the private bar during the Obama administration, which was designed to provide clemency to defendants serving long, non-violent drug offenses. Many older inmates serving long, draconian sentences for non-violent drug offenses were released under the program.
Initially, priority should be given to those inmates who have an established home plan upon release. While this may seem unfair to some, it is important that an inmate who is released has a network of support to ensure he or she is not placed in an environment where they could be exposed to the coronavirus. It also increases their chances of not ending up back in trouble. In the future, resources should also be developed for those without a safety net in order to provide these returning citizens with basic needs.
We are living in difficult times, filled with fear and uncertainty, but this is the time when our elected officials and others in government should step up and show decisive leadership and take this opportunity to make our system of incarceration more humane, and one that recognizes the diminishing return of lengthy prison terms that do little to protect the public and add enormous cost to an already overburdened prison system. At a minimum, it will save lives.