Editors’ Note: Reposted from the Richmond Times-Dispatch, April 16, 2020.
By Cara H. Drinan
Cara H. Drinan is a professor of law at The Catholic University of America in Washington, D.C., where she teaches criminal law and procedure. Her research focuses on juvenile sentencing and criminal justice reform.
There are more than 60,000 adults and children behind bars in Virginia, and these individuals are uniquely vulnerable to COVID-19. Nationwide, the percentage of prisoners older than age 55 has increased steadily for two decades. In addition, prisoners live in close quarters, often with inadequate basic hygiene, let alone quality health care. Social distancing in prison is nearly impossible.
This is not “just a prison problem.” Instead, this is a ticking time bomb for the entire commonwealth. As of this writing, the Virginia Department of Corrections (DOC) has confirmed 80 active cases of COVID-19 among inmates and staff, and one death; this does not account for cases in local and regional jails. Unless our correctional population is reduced, this number will increase exponentially. Correctional staff go home to their families and communities, and thousands of people in Virginia’s jails have not even been convicted of a crime. They also could return home at any point. At the same time, COVID-19 patients can remain asymptomatic for up to two weeks. In short, as Virginia correctional facilities become a vector for COVID-19, and as people move in and out of those facilities, we all stand to lose.
Fortunately, Gov. Ralph Northam has the authority to release individuals in a safe and judicious manner amid this public health crisis. On Friday, April 10, Northam announced he will seek the General Assembly’s approval to grant the DOC added discretion at this time. If approved by lawmakers, the DOC would be able to release individuals within one year of their release date who pose no risk to public safety. [Editor’s Note: In the General Assembly’s special session on April 22, lawmakers approved this proposal.] This is a move in the right direction, but the plan will only address approximately 2,000 individuals — less than 3% of Virginia’s correctional population. And this crisis is urgent. Northam need not wait for the legislature to act; he can and should do more now.
Northam could pardon those who are nearing their release date without waiting for legislative action…. If Northam were to use his clemency power in a more robust way, he would join the ranks of other state actors who recognize prisons and jails as a massive threat to our collective safety right now. Most notably, Kentucky Gov. Andy Beshear plans to commute the sentences of nearly 900 incarcerated individuals based on their approaching release dates and their susceptibility to the coronavirus. Other creative measures to address this correctional crisis are underway in California, Colorado, Massachusetts, Oklahoma, Pennsylvania and Washington state.
Specifically, the Virginia Constitution gives the governor the power to grant pardons to those convicted of crimes. Northam could pardon those who are nearing their release date without waiting for legislative action. Moreover, studies show that older prisoners are unlikely to commit new crimes, and they are more likely to have health problems and be at risk for contracting this virus. Northam could identify prisoners who fit this profile and pardon them accordingly. He also should consider releasing youth and those who were convicted as minors and have demonstrated rehabilitation, given that most youth simply age out of crime. In these ways, the governor could make a significant dent in our correctional population, thereby enhancing the safety of all Virginia residents.
If Northam were to use his clemency power in a more robust way, he would join the ranks of other state actors who recognize prisons and jails as a massive threat to our collective safety right now. Most notably, Kentucky Gov. Andy Beshear plans to commute the sentences of nearly 900 incarcerated individuals based on their approaching release dates and their susceptibility to the coronavirus. Other creative measures to address this correctional crisis are underway in California, Colorado, Massachusetts, Oklahoma, Pennsylvania and Washington state.
Some lawmakers might question whether Northam can implement such expansive clemency measures. Indeed, in 2016, Gov. Terry McAuliffe attempted to restore the voting rights of more than 200,000 Virginians through an executive order, and the Virginia Supreme Court held in Howell v. McAuliffe that his blanket clemency grant was an unlawful suspension of law. But this is an entirely different case. Clemency in a time of COVID-19 would not reject settled legislative judgment on a narrow issue; it would still entail consideration of individual circumstances; and it would occur against the backdrop of a global pandemic. The Howell case simply does not bar the governor from releasing people who are uniquely vulnerable to COVID-19 and/or who pose little to no threat to public safety.
Others might question where all of these released individuals will go and how they will obtain economic support in a time of financial meltdown. These are valid concerns, but other states are addressing them, and so can the commonwealth. For example, the governor could make the release of individual prisoners contingent upon their having a safe residence in which to quarantine. Many incarcerated individuals have family and loved ones who would welcome them home.
This is an unprecedented time. Northam’s exploration and exercise of his clemency power should be unprecedented, too.