Hundreds of prisoners have been released amid pandemic — critics say it’s not enough

Virginia officials have OK’d at least 1,172 prisoners for early release under a plan the governor announced at the outset of the pandemic to help curb spread of the coronavirus.

Of those, 910 had actually been let out as of Tuesday, according to data from the Virginia Department of Corrections. The majority, 606, had been in state prisons, while 303 were serving sentences in local jails. One was in an institutional hospital.

All who were approved had less than a year left to serve, and met a host of other criteria, including a lack of sexually violent or major felony convictions.

But some advocates argue the rate of review has been too slow to actually make a difference for those most at risk.

“The DOC has created a very bureaucratic process,” said Eden Heilman, legal director for the American Civil Liberties Union of Virginia. “They’ve done it in the name of concerns about recidivism. But it’s concerning to us because these are all people released within the year anyway. The process is really slowing down the review.”

In court, the ACLU of Virginia had pressed the state to do more to help vulnerable prisoners during the pandemic, and the sides reached a settlement agreement this summer that put in place certain benchmarks for the DOC.

In April, Gov. Ralph Northam said at a press conference that he wanted to release prisoners with less than a year on their sentence in order to help stop the coronavirus from spreading in correctional facilities where there are close quarters. At that time, only 25 state prisoners had tested positive for COVID-19.

At least 3,811 prisoners have now tested positive; 33 have died. There are also 45 active cases among staff and contractors.

The General Assembly authorized the early release plan in April. It applies during the governor’s official state of emergency declaration, which has been in effect since March 12.

The other criteria prisoners must meet to qualify for early release: They must have an approved home plan to return to and they must be determined to have a low or medium risk of recidivism as calculated by an algorithm.

Eligible prisoners were automatically screened and did not need to apply for release, DOC spokeswoman Lisa Kinney said in an email.

She said the number of offend

ers who meet the standards changes daily. As of Oct. 1, 10,000 had met the basic criteria and, of those, more than 1,600 made it to “an advanced level of review,” she said. (The state has more than 26,000 people incarcerated in DOC institutions.)

Kinney said the department could not immediately identify the facilities from which the prisoners were released.

Before Northam announced the plan this spring, a Charlottesville-based attorney sued the state on behalf of 27 incarcerated Virginians, a suit the ACLU of Virginia later joined. They argued that keeping the plaintiffs, many of whom suffer from highrisk health conditions, locked up unprotected during the pandemic amounted to cruel and unusual punishment.

In May, the attorneys agreed to dismiss the case as part of a settlement agreement, which included a stipulation that DOC give priority to those with health conditions determined to be at higher risk for complications from COVID-19.

The ACLU of Virginia has since sent the state two notices of noncompliance.

Heilman, the organization’s legal director, said the first issue was that the numbers of people reviewed for potential release was rapidly declining around midsummer. Officials had been going through about 90 per week and that slowed to around 30, she said. The court told the DOC to bump that up to at least 60, which it has.

In a nationwide analysis conducted in July by the Associated Press and the Marshall Project, Virginia’s drop in the prison population was only 2% from the beginning of the pandemic — the lowest of 39 states with data available.

Kinney noted in her email that lawmakers did not provide the department additional funds or staff for the review process and staffers have worked overtime to do so.

“For example, the offenders’ files must be audited to ensure no offender is released when he has additional time pending in a Virginia court, and offenders’ home plans must be approved, including coordinating with other states as needed for offenders moving out of state,” she wrote.

Heilman and her colleagues also have raised concerns about prisons with large outbreaks — including Deerfield Correctional Center, where more than 900 offenders have tested positive for COVID-19.

The organization submitted testimony from one client, a nonviolent offender at Deerfield with terminal cancer, whom state officials would not release early because his risk of recidivism was considered too high, Heilman said. He died soon after.

His story was “pretty outrageous,” Heilman said. “All of these people are going to be released within a year anyway.

Whether or not certain (home) plans have been codified seems a little silly considering the risk of death in an outbreak. It is something (the DOC should do) in order to minimize spread and not have these facilities be overcrowded.”