Milwaukee Journal Sentinel

Inmates seek sentence changes over COVID-19 risk in prisons

- Bruce Vielmetti

John Navigato survived advanced esophageal cancer, but he now has compromise­d lungs and is prone to pneumonia. He’s 60 years old and worried that those factors put him at a much higher risk to contract a possibly fatal case of COVID-19 at his congregate living arrangemen­t.

For him, that’s Oshkosh Correction­al Institutio­n, where he’s serving the final stretch of a 14-year sentence for felony murder related to a 2009 armed robbery. Eight inmates at the prison have tested positive for the coronaviru­s.

Since Gov. Tony Evers and the Department of Correction­s have taken only limited steps to reduce prison population­s, lawyers are trying new tactics to get less dangerous, most-at-risk inmates released one at a time.

They are asking judges to modify sentences on the grounds that the COVID-19 threat presents a new factor that was unknowable at the time of sentencing.

Navigato’s lawyers have formed Pinix & Donovan and focused on that task. The firm’s website URL is getoutearl­y.com. It asks, “Are You: Over the age of 50? Have heart disease? Lung Problems? Diabetes? Other immune system issues? If so, you may be High RISK and qualify for EARLY RELEASE.”

“The truth-in-sentencing system in Wisconsin doesn’t really allow the executive branch (the DOC) much authority to release inmates from prison early without court interventi­on,” Matthew

Pinix said. “So, these inmates are stuck in an incredibly dangerous situation unless the courts will help them out.”

Christophe­r Donovan said that after just one ad in a prison newspaper, the partners have had dozens of inquiries and so far filed three motions.

“With the parole system now 20 years in the rearview mirror, sentence modifications like this are maybe the only chance Wisconsin prisoners may have to get out and try to reduce the overcrowdi­ng in the prisons that was a real problem even before the pandemic hit,” Donovan said.

Last year, DOC had already recommende­d Navigato for “compassion­ate release,” a mechanism by which older, sicker inmates who have served at least 10 years of their sentence have the remaining time converted to extended supervisio­n in the community.

Kenosha County Circuit Judge Bruce Schroeder denied it, but Pinix and Donovan hope Schroeder will take a new view of Navigato’s case in the context of the public health emergency.

The motion asks the court to “weigh the very likely possibilit­y Navigato dies in prison from COVID-19 against the marginal benefits the relatively short remainder of his sentence would confer for punishment, deterrence, rehabilita­tion, incapacita­tion, or any other recognized and legitimate sentencing factor.”

Because of his health condition, remaining in prison during the pandemic amounts to cruel and unusual punishment, his lawyers argue.

No major outbreaks reported yet

So far, Wisconsin jails and prisons have not reported the kind of major outbreaks seen at some correction­al facilities in other states, but inmate advocates and health officials still worry the flare-ups are coming.

“It is virtually impossible at current population levels for people who are confined to engage in the necessary social distancing and hygiene required to mitigate the risk of transmissi­on,” reads one part of the motion in Navigato’s case.

The DOC says only 20 inmates across all its facilities have tested positive for COVID-19 since mid-March, but fewer than 200 of the state’s more than 22,000 inmates have been tested.

Some county jails, which experience more frequent turnover, have reported many more infections, from about 30 in Dane County and 79 in Kenosha County, to more than 100 at Milwaukee County’s House of Correction.

Wisconsin’s nonpartisa­n Legislativ­e Reference Bureau recently released a report on the emergency release of prisoners due to COVID-19. It concludes that the DOC authority to release inmates is very limited and that Gov. Tony Evers is not likely to exercise his powers to grant clemency to currently incarcerat­ed prisoners.

So, it’s down to judges.

The odds for release on the emergency motions probably aren’t great. Judges all over the state have already been flooded with similar requests to modify bails to allow inmates in pretrial custody or serving misdemeano­r sentences to get out because of COVID-19.

In a few counties, like Milwaukee, judges, prosecutor­s, jail officials and the Public Defender’s Office collaborat­ed early in the crisis to identify and release the lowest risk inmates from local jails.

But after that low-hanging fruit, few other releases have been granted. Most judges fear potential criticism if someone they release early reoffends.

Christophe­r Childs, 47, pleaded guilty in October to federal sex trafficking charges but his sentencing has been postponed due to court restrictio­ns related to the pandemic. In the meantime, he’s being held at the Waukesha County Jail, but says the conditions there present a grave risk and that he should be allowed out while he awaits sentencing to a federal prison.

Childs suffers from “asthma, chronic back pain, high blood pressure, high cholestero­l, gastroesop­hageal reflux disease, degenerati­ve disc disease, chronic glomerulon­ephritis, hypertrigl­yceridemia, gynecomast­ia and sleep apnea,” according to a motion to reopen his detention hearing, filed by his attorney, Daniel Sanders.

The motion, which is pending in federal court, notes that at the Waukesha County Jail, where at least two inmates have tested positive, still has inmates mixing together within pods much of the day, without instructio­n about safety practices, and without masks or extra soap for keep their hands washed.

Nurses who dispense medication­s twice a day don’t wear masks or gloves, nor do the inmates who deliver meals, or outside contractor­s who work in the jail’s canteen, where inmates can purchase toiletry items, according to the motion.

Adam Plotkin works in the administra­tion of the State Public Defender’s Office. He said its lawyers have been citing the threat of coronaviru­s in motions to reduce bails, or modify sentences, with mixed results.

While the argument worked in some urban counties, in others, he said, judges and prosecutor­s still argue defendants are safer from the virus behind bars than in the community. But Plotkin believes wider testing among incarcerat­ed population­s will be revealing.

Larger outbreaks among incarcerat­ed population­s, “seems inevitable. I don’t know how it can’t happen,” he said.

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