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The COVID-19 Pandemic and Efforts to Release People in Custody

By Phebe Hong

The first death of a federal inmate from COVID-19 occurred on March 28, at a prison in Oakdale, Louisiana. The inmate had been incarcerated for 13 years for a nonviolent drug charge. At least four other infected inmates have died at the same institution.

The COVID-19 pandemic is wreaking havoc on prisons and jails, where proper social distancing is nearly impossible to maintain.

Across the country, advocates and politicians urge for the release of inmates—particularly those who are medically compromised, elderly, or pregnant—in order to stem an uncontrollable outbreak in the prison system. Law enforcement officials, however, have pushed back on calls for early release, arguing that doing so would overburden law enforcement officials, specifically probation and pretrial officers.

In response to recent outbreaks in federal prisons, Attorney General Bill Barr expanded the group of federal inmates eligible for release to all those broadly considered “at-risk” in a memo sent to the Director of Bureau of Prisons on Friday April 3. In the memo, Barr specifically prioritized the release of inmates from federal institutions in Louisiana, Connecticut, and Ohio.

In the prior week, Barr had ordered the release of only inmates who were 1) eligible for home confinement, 2) no longer posed a threat to the public, and 3) were particularly vulnerable to the coronavirus. 522 of 146,000 inmates were moved to home confinement under these criteria.

Barr cited the expanded release authority granted to him by Congress under the newly-signed CARES Act. Under previous law, inmates were only eligible for home confinement after completing at least 90% of their sentences. Under the CARES Act, earlier releases are permitted during declared emergencies.

Key uncertainties remain: how will inmates  be quarantined upon their release in order to ensure the virus is not transmitted from prisons to the community? And  how will homeless programs and community hospitals adequately prepare? Here is a  snapshot of additional actions taken by officials and legal organizations across the globe in the effort to release people from custody:

  • New York: Public defenders filed suit demanding the release of 540 “medically vulnerable” inmates from Brooklyn’s Metropolitan Detention Center out of concern that inmates “will be exposed, sickened, or potentially face serious illness or death because of MDC’s inadequate and slow response to this public health crisis, and its lack of medical facilities.”
  • California: A federal court panel denied an emergency motion for mass releases from California prisons, ruling that although inmates have an Eighth Amendment right to be protected from disease,such action would be outside the panel’s authority. The state is already preparing for the early release of 3,500 inmates.
  • Iran: Iran temporarily released about 85,000 inmates, primarily non-violent offenders serving short sentences, to contain the spread of coronavirus. Many temporarily released inmates are protestors who were arrested in anti-government demonstrations in November.
  • United Kingdom: The Ministry of Justice expects to release up to 4,000 inmates in England and Wales, specifically low-risk offenders with two months or less on their sentence, who will be electronically tagged upon release.
  • Italy: The Italian government adopted a measure allowing for early supervised release of prisoners with less than 18 months left to serve of their sentence, which would lead to an estimated release of more than 3,000 inmates.

For ongoing coverage and more information, check out databases compiled by the UCLA School of Law that track developments related to COVID-19 in prisons and jails nationwide.

Phebe Hong

Phebe Hong is a 2L at Harvard Law School. She graduated from Harvard College with a degree in Human Developmental and Regenerative Biology. Prior to law school, she worked as a consultant advising pharmaceutical and biotechnology companies. She is a Research Assistant at the Program on Regulation, Therapeutics, and Law (PORTAL) and an Articles Editor for the Journal of Law and Technology. Her research interests include FDA regulation of biologics and pharmaceutical patent law.

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