Frequently Asked Questions about Health and Safety in Jails and Prisons During the COVID19 Pandemic

Why is incarceration an important issue during the COVID19 pandemic?

The United States is the most incarcerated country on the planet. Jails and prisons across the country are often near or at capacity, where incarcerated people are held in extremely tight quarters, eating and sleeping collectively in close contact. Conditions like these are ripe for a significant outbreak of COVID-19 when the coronavirus reaches inside the walls of jails and prisons. Incarcerated people have no ability to social distance or self-quarantine from others who are incarcerated or from jail and prison staff and attorneys who could unknowingly bring the virus inside jail or prison walls.

What does the ACLU of Pennsylvania propose as a solution?

The ACLU of Pennsylvania calls on Pennsylvania Governor Tom Wolf, the state Supreme Court, legislators, and other stakeholders in the criminal legal system to identify certain classes of incarcerated people who should be immediately released to ensure that jails and prisons do not become epicenters of the outbreak.

While Governor Wolf has announced his intention to use his power of reprieve to release between 1,500 and 1,800 incarcerated people, the ACLU of Pennsylvania has urged Governor Wolf to use his full executive powers to temporarily suspend the sentences of people who are medically vulnerable or elderly, those who are potential pardon candidates, or those whose sentence was set to expire soon from county jails and state prisons. In addition, the ACLU of Pennsylvania has advocated for the state Parole Board to expedite the releases of those who have served their minimum sentence and others who are currently eligible for parole and people who are incarcerated for parole violations.

Who should be released?

Most of the incarcerated population in jails is awaiting resolution of their case — and many are being held in jail solely because they cannot afford to pay cash bail.

Another group of people held in prisons and jails are those who have committed a violation of their probation or parole supervision. While some of these violations include convictions for a new crime, many are sent back for “technical violations,” breaking a rule of their supervision, like missing an appointment with a probation or parole officer or losing a job — actions that would never be considered a crime under normal circumstances. There is no reason to continue to fill county and state facilities with people who simply broke the rules of their supervision, especially when space to physically distance is nearly impossible to achieve.

In normal times, it is a grave injustice to keep people incarcerated because they are poor or because they violated a condition of their supervision. In this sudden era of the pandemic, it’s a matter of life or death.

In prisons, incarcerated people convicted of serious crimes can spend a significant portion of their lives locked up, many become elderly and/or suffer from serious medical conditions; they no longer pose a threat to public safety. Another subset of prison populations are those awaiting release on parole or for a parole hearing that will order their release.

In county jails, the ACLU of Pennsylvania has asked the state Supreme Court to issue an emergency order for presumptive release for incarcerated people who:

  • are within three months of their minimum sentence being completed;
  • are on a probation detainer if the violation which triggered the detainer is not a new felony;
  • are on work release or are serving another type of intermittent sentence;
  • are incarcerated only because they can not afford to pay cash bail; and
  • are over the age of 45 or are medically vulnerable

The court’s ruling agreed with the premise of the ACLU-PA filing and ordered every county across the state to conduct a review and to release individuals who fall into these categories. A concurring opinion by Pennsylvania Supreme Court Chief Justice Thomas Saylor noted that Governor Wolf can use his executive powers to protect public health by releasing people from both state prisons and county jails.

Who has the power to make these changes?

Depending on the type of release and whether a person is incarcerated in a state prison or county jail, a variety of stakeholders have the power to implement these proposals. Here’s how:

  • According to the state Supreme Court’s ruling described above, Governor Tom Wolf can use his executive powers to release people from county jails and state prisons.
  • Lieutenant Governor John Fetterman has the power to convene and expedite proceedings of the Board of Pardons.
  • Secretary of Health Rachel Levine could offer guidance to jails and prisons urging release so that those institutions can adhere to Centers for Disease Control guidelines on social distancing and self-isolation.
  • The state Supreme Court could order the presumptive release of all incarcerated people in county jails who fall into the classes listed above.
  • The legislature could pass a law mandating the release of those classes of incarcerated people.
  • Magistrate judges could stop assigning cash bail and prosecutors use their prosecutorial discretion to not charge low-level offenses.

There are a variety of ways that Pennsylvania can take proactive steps to protect the health of those incarcerated in jails and prisons, as well as staff and visitors in those institutions. An outbreak of COVID-19 behind the walls of a jail or a prison would be an unmitigated disaster. Pennsylvania must act now, as other states around the country and countries around the world, are already doing to help prevent a catastrophe among incarcerated people in Pennsylvania.

What is the governor’s power of reprieve?

The power of reprieve allows the governor to temporarily suspend a criminal sentence. If Governor Wolf were to use his power of reprieve to reduce the population in Pennsylvania prisons so that residents can safely practice social distancing and quarantining, that does not necessarily mean that those who were released under the reprieve will be permanently out of prison. Once the reprieve ends, those who were released will return to prison to continue their sentences, unless they were approved for parole before the Governor’s disaster declaration is lifted. Governor Wolf has used his power of reprieve once before in 2015 to suspend the use of the death penalty in the commonwealth.

Why is this a public health issue?

An outbreak of COVID-19 inside a jail or a prison would be catastrophic, with an infected jail or prison quickly becoming an epicenter for COVID-19. Not only will this impact incarcerated people, but also the staff, attorneys, police, medical professionals, and new admissions who enter and leave the institution daily carrying the virus back out to the broader community.

Why is this a constitutional rights issue?

The constitutionality of this issue might be best described by the words of federal Judge John E. Jones III, who wrote in a recent decision that released ten people from federal immigration detention in Pennsylvania, all of whom were at a high risk for contracting COVID-19 because of preexisting health conditions or due to their age. Judge Jones said “Our Constitution and laws apply equally to the most vulnerable among us, particularly when matters of public health are at issue. This is true even for those who have lost a measure of their freedom. If we are to remain the civilized society we hold ourselves out to be, it would be heartless and inhumane not to recognize Petitioners’ plight.”

What can I do if I have a family member or loved one in a Pennsylvania jail or prison?

  • Contact Governor Wolf and urge him to use his executive powers to get people out of jails and prisons to protect public safety and the health and dignity of incarcerated people
  • Stay up-to-date on your local news
  • Make phone calls or send emails to the stakeholders listed above and urge them to take action to keep our jails and prisons safe during the pandemic
  • Keep an eye on ACLU-PA’s social media accounts for ways to take action and call on elected officials to do the right thing for public health

We are the ACLU’s Pennsylvania affiliate, defending the Constitution and the Bill of Rights through litigation, advocacy, and community education and outreach.