“Governors Must Use Clemency Powers to Slow the Pandemic”

The title of this post is the title of this new memorandum from Courtney Oliva and Ben Notterman. Here is how it gets started:

Nearly 3 in 4 Americans have now been ordered to stay home and remain indoors, while many states have ordered non-essential businesses to shutter.  These steps may seem drastic, but they are being taken in order to safeguard public health during the COVID-19 pandemic.  Government actors who are truly serious about protecting people must take comprehensive and coordinated action to combat the spread of the virus.  This means acknowledging and explicitly considering the health risks of vulnerable populations — including people serving sentences in state prisons — when crafting and implementing gubernatorial responses to reduce the risk of transmission.

Jails and prisons are unable to comply with CDC hygiene standards and are accelerating the pandemic.  People who are incarcerated are more likely to have chronic health conditions than the general public.  Likewise, the percentage of people age 55 or older in state prisons has more than tripled between 2000 and 2016.  Incarceration also has negative “knock on” effects.  Incarcerated people tend to age faster than the general population, and their physiological age outpaces their chronological age by anywhere from 7 to 10 years.

In some states, local government actors have responded to the growing threat of COVID-19 by taking steps to reduce jail populations and to limit the number of people being admitted to jails.  Police departments are also adjusting by issuing citation and misdemeanor summons for certain offenses.  But while local government officials have begun tackling the risk that jail populations pose, little movement has occurred to reduce prison populations and the attendant risk of transmission of COVID-19 to people serving sentences in prisons, prison employees, their families, and their communities.

If states are serious about preventing the spread of COVID-19, they must take immediate action to reduce the number of people in state prisons. While every state’s mechanisms will differ according to constitutional and statutory provisions, there are a number of actions that state actors — including governors — can take.

See Appendix for a state-by-state overview of these legal mechanisms.