State report explores early prison release during pandemic

The fate of people incarcerated in prisons and jails has been an elephant in the room for Wisconsin throughout the COVID-19 pandemic. Although the prison population has diminished somewhat in recent weeks, there are calls for larger reductions and more compassionate release of vulnerable people. It appears that someone in state leadership is listening.

Wisconsin’s Legislative Reference Bureau (LRB) recently published a report exploring emergency release from prison. It provides a detailed overview of why the state’s prison population is vulnerable, and whose authority can initiate releases. To date, 20 individuals in state custody have tested positive, alongside 18 correctional staff across at least eight facilities.

On page 3 of the 15-page document, the report notes that the number of incarcerated people over the age of 54 has steadily climbed since about 2010. “Compared to the general population,” it reads, “incarcerated Americans suffer disproportionately from chronic disease, including pulmonary conditions such as tuberculosis (TB), tobacco use disorder, asthma, lung cancer and pulmonary complications caused by the human immunodeficiency virus (HIV).” Noting the rising age of many of those individuals, the report states, “these factors make prison populations especially vulnerable to COVID-19.”

The world’s main strategy to combat the virus has been to deny it the social vehicles it uses to spread. Life across the globe, particularly in crowded urban areas, has ground to a halt. Social distancing is the name of the game. Yet, as the LRB report notes, for incarcerated people, “adherence to social distancing guidelines may be difficult at best, or impossible at worst.”

Wisconsin has enacted several measures at the state and local levels to mitigate COVID-19 in correctional facilities. Prison admissions have halted, as well as transfers between facilities for people who are already well into their confinement. Visits are prohibited, programs meant to provide incarcerated people with education and skills have ceased, and a variety of other administrative rules have been suspended.

Still, the report states, “confirmed cases of COVID-19 among staff and inmates at several facilities have raised the question of whether the state should release certain high-risk individuals, either pre-trial or post-sentencing. Several other states — including California and Ohio — have taken steps in this direction.”

The Federal Bureau of Prisons has also been directed by U.S. Attorney General William Barr to prepare for the early release of inmates at federal facilities in Louisiana, Connecticut, and Ohio. As is made clear by Wisconsin’s Tougher On Crime debate, however, the Badger State is fast becoming an island of antiquated criminal justice policy. Even before the pandemic, the state was slow to implement reforms. Gov. Tony Evers campaigned on reducing the prison population by half.  The loved ones of incarcerated people and their advocates feel now is a better time than ever to deliver on that campaign promise.

“In some states,” reads the report, “these measures have been implemented at the direction of the governor by executive or emergency order. Elsewhere, they have been implemented by state corrections agencies under existing statutory and administrative authority. In Wisconsin, the Department of Corrections (DOC) has taken action in response to COVID-19 both at the direction of the governor and under its existing statutory and administrative authority.”

As of May 5, wardens across seven DOC facilities suspended administrative rules using emergency powers granted them when extraordinary circumstances prevent the normal functioning of an institution. Among the measures they took were limiting meals to prison cells and other steps to slow or limit the movement of people through their facilities.

On March 12 DOC prohibited entry to people experiencing symptoms or potentially exposed to other people  experiencing symptoms of COVID-19. The following day, DOC announced it would suspend visits entirely, except for  professional visits from lawyers and social workers.

According to the report, DOC has also encouraged incarcerated people to seek medical care and testing for the virus. On March 12, some medical co-pays were suspended to further encourage incarcerated people to seek medical attention. But advocates say that some are fearful of reporting symptoms because they fear they risk being thrown in solitary for quarantine. The DOC maintains that medical isolation is different from disciplinary isolation.

Authority to release prisoners rests not just in Evers’ hands, but also with the DOC and, by extension, the Parole Commission. The governor may grant clemency, pardons, or commutations depending on the circumstances.

“Gov. Scott Walker did not grant clemency in any form during his two terms as governor,” the report notes. “Gov. Evers has reinstated a pardons board to handle clemency applications. The governor has set criteria for obtaining clemency such that only pardons are available; reprieves and commutations are not currently included in the administration’s application criteria.” It then concludes, “while the Wisconsin Constitution provides that the governor may use his or her clemency power to shorten prison terms and release inmates, the current administration’s policy suggests that this is unlikely.”

The Parole Commission also has significant authority over the release of incarcerated people who may be eligible. “Neither the rules nor statues address an unsafe condition within the state prisons as a reason for releasing an inmate to parole,” the report states “Additionally, extensive procedural requirements related to considering and granting parole make it unlikely that DOC would use traditional parole to release inmates during the COVID-19 public health emergency.”

There might be another way, however. A separate parole system is outlined in the statutes, intended to relieve crowding. The DOC would need to create rules for the program, as well as define who is eligible and the procedures for granting those releases. Although the situation remains tense and uncertain for incarcerated people and their advocates, the state’s report shows officials are listening. The report outlines the complex dimensions of laws and procedures and how they might be used to get people out of prison during a pandemic in one of the country’s most notorious incarceration states.