PA governor has ability to remove thousands of vulnerable people from state prison

Pennsylvania Governor Tom Wolf most likely has the ability to remove thousands of the most vulnerable people from state prison with the stroke of his pen as COVID-19 spreads across the state, reported The Appeal. But he is not using that authority.

In an email obtained by The Appeal and sent to a spokesperson at the Pennsylvania Department of Corrections (DOC), Anne Cornick, deputy general counsel for the state Office of General Counsel, said the agency reviewed whether Wolf has the authority to issue reprieves—temporary suspensions of prison sentences. The office, which advises the governor and other executive agencies on legal matters, determined that Wolf “could probably do it,” Cornick wrote, but “it was not the preference” to use the reprieve power.

The email was part of an internal discussion about how to respond to questions from The Appeal regarding Wolf’s ability to grant reprieves. Cornick directed the DOC spokesperson to avoid discussing the option in its response. “I think we want to give an answer that doesn’t answer directly the reprieve questions,” Cornick wrote. 

Neither Cornick nor the governor’s office responded to a request for comment. The DOC did not respond to a request for comment, but lawyers for the department asserted that the emails obtained by The Appeal were covered under attorney-client privilege.

Reprieves are a form of clemency, but they do not go as far as commutations, which permanently reduce a criminal sentence, and pardons, which absolve a person of criminal wrongdoing.

Although Wolf has previously used reprieves to delay executions, Ben Notterman, a research fellow at New York University’s Center on the Administration of Criminal Law, told The Appeal that the power is much more expansive and largely unchecked in Pennsylvania. 

“I’m sure there are logistical and public health-related considerations about the manner in which we remove people, but there don’t seem to be any legal (or moral) ones,” Notterman said in an email. “And it should be done immediately, while we are still able to limit COVID-19’s spread.”

The state Constitution gives the governor the sole authority to grant reprieves, commutations, and pardons. However, the governor must receive approval from the state Board of Pardons before issuing commutations or pardons. 

This restriction is not placed on reprieves. 

“The current COVID-19 crisis illustrates precisely why reprieves—unlike pardons and commutations—are free from regulation: the governor needs a mechanism to act immediately to avoid disaster in prisons/jails, whether the disaster is putting a potentially innocent person to death or stemming a viral outbreak that could lead to many deaths,” Notterman said.

NYU law professor Rachel Barkow, an expert on clemency in the United States, agrees with Notterman’s assessment. Barkow recently called on governors across the country to use their executive authority to remove people from prisons and jails to prevent the spread of COVID-19.

A protest in Philadelphia on Monday, urging Mayor Jim Kenney and Governor Tom Wolf to reduce jail and prison populations as COVID-19 spreads.Decarcerate PA

While officials across the country have begun to release people from jails during the pandemic, they have moved more slowly to release state prisoners. Jails typically have more options to release those held in custody. In Pennsylvania, judges can usually grant early release for most people sentenced to jail time, or they can reduce or choose not to impose bail requirements.

State prisons generally have fewer mechanisms for early release. In Pennsylvania, parole must be approved by the parole board, the compassionate release program is restrictive, and there is no furlough program for people in prison.

On Monday, the DOC announced that all incarcerated people would be put under quarantine as a precaution, a day after the agency said a man being held at State Correctional Institution Phoenix in Montgomery County had tested positive for COVID-19. He is the first incarcerated person in a Pennsylvania prison to test positive for the disease.

Prisons and jails historically have been a hub for the spread of communicable diseases. A lack of access to personal hygiene supplies, an inability to isolate or socially distance, and typically substandard medical care tend to allow for the proliferation of disease. For example, the rate of tuberculosis in prisons is nearly twice that of the general population, according to a study published in the Annals of the American Thoracic Society. 

New York City’s Rikers Island jail complex has already seen rapid growth in COVID-19 infections. As of Monday, 167 people on Rikers Island had tested positive for the disease, a figure that is doubling roughly every two days. 

Bret Grote, legal director for the Abolitionist Law Center, said the U.S. needs to begin releasing people in prison to halt the spread of the disease. More than 20,000 people are already released from Pennsylvania prisons every year, he said, “and if political will is to be commensurate to the magnitude of the looming crisis, at least 10,000 can be safely released in an expedited fashion to relieve the burden on the system and limit transmission of COVID-19 inside the prison and among the broader community.”

There are currently more than 45,000 people held in state prisons in Pennsylvania. As of last week, the DOC had only four ventilators to serve that entire population.

As of the end of 2018, more than 10,000 people being held in a state prison were 50 years old or older. According to the University of Oxford, people over 50 are at least four times more likely to die if they test positive for COVID-19 than people under 50. 

“Political cowardice must not allow our people behind the walls to become a sacrifice population,” Grote said

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ACLU files emergency petition with PA Supreme Court to release county jail inmates

The American Civil Liberties Union (ACLU) of Pennsylvania filed an emergency petition to the Pennsylvania Supreme Court seeking the release of some in the Commonwealth’s county jails, reported Jurist. The petition argues it is a necessary measure to allow jail space to follow CDC-recommended safe social distancing practices to prepare for COVID-19.
The petition asks the Supreme Court to use its “Kings Bench” power to relieve some of the jails’ most vulnerable populations, as well as those awaiting trial or on short sentences for minor offenses.

“Leading public health officials have warned that unless courts act now, the ‘epicenter of the pandemic will be jails and prisons,'” the petition states. “The U.S. Centers for Disease Control and Prevention (“CDC”) has explained that correctional and detention facilities ‘present unique challenges for control of COVID-19 transmission among incarcerated persons, detention center staff, and visitors.’”

Other states have implemented similar measures, outlined in the ACLU’s petition, including New Jersey, which was the first March 23, and South Carolina, where its Supreme Court ordered that everyone held in jail on bond in a non-capital case be released, unless there exists an “unreasonable danger” or “extreme flight risk.” US Attorney General William Barr directed the Bureau of Prisons (BOP) to use home confinement for inmates currently held in jail or prison when appropriate in response to an increase of COVID-19 cases among prison populations on Thursday last week.

“We urge this Court, in the strongest terms, to join the growing chorus of courts who have decided to act in an effort to save lives. The time to act is now,” the petition said.

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GOP lawmaker wants Pennsylvania businesses to reopen in the midst of spreading pandemic

A Republican state lawmaker from Adams County says he wants to send Pennsylvanians back to work -- despite a Wolf administration order mandating the shutdown of all "non-life sustaining" businesses, reported the Pennsylvania Capital-Star.

In a memo seeking support for his plan, Sen. Doug Mastriano accused Democratic Gov. Tom Wolf of picking "winners and losers" with his proposal, and said the waiver process the administration had set up allowing business owners to appeal the order is "flawed, ineffective, lacks accountability, has no oversight, and is riddled with unconstitutional powers."

As it's currently written, Mastriano's proposal would allow businesses to reopen their doors if they "[utilize] health and safety guidelines outlined by the Centers for Disease Control, and the U.S. Dept. of Labor's Occupational Safety & Health Administration," he said in a statement.

“This legislation will allow all businesses to reopen if they agree to abide by Centers for Disease Control mitigation measures to contain the spread of the virus,” Mastriano said. 

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Misconduct by Police, Prosecutors, and other Government Officials Continues to Drive Majority of Wrongful Convictions, Report Shows

In 2019, the National Registry of Exonerations recorded 143 exonerations, setting a record for the number of years lost to prison for crimes exonerees did not commit. Collectively, innocent people who were exonerated last year spent 1,908 years incarcerated, an average of 13.3 years lost per exoneree. Official misconduct by police, prosecutors, or other government actors accounted for at least 93 exonerations in 2019. Seventy-six defendants were exonerated of homicide. 

“Right now, there are likely thousands of innocent people in U.S. jails and prisons as a result of wrongful convictions. It is hard to imagine the horror of being incarcerated today -- innocent or guilty -- as the COVID-19 virus is spreading through these closed spaces and threatening lives,” said Barbara O’Brien, the report’s author, who is a law professor at Michigan State University and the editor of the National Registry of Exonerations.

Illinois had the most exonerations in 2019 with 30, followed by Pennsylvania (15), Texas (15), New York (11), Michigan (9), and California (7). The main reason for the high number of exonerations in Illinois was the continuing fallout from a scandal involving police officers who planted drugs on people who refused to pay them.  

The 2019 report shows that, when faced with the power of the state, wrongly accused defendants can succumb to coercion, fear, and exhaustion and wind up behind bars, even though they are innocent. Last year, 24 exonerations involved false confessions. Thirty-four exonerations were for convictions based on guilty pleas. Fifty exonerations were for convictions in which no crime was committed, such as drug prosecutions for substances that were not illegal drugs.

County prosecutors and state attorneys general continue to open Conviction Integrity Units -- divisions of prosecutors’ offices that are dedicated to preventing, identifying, and remedying false convictions -- at a fast rate. As of the date of publication, there are 60 CIUs in operation. The 2019 report records 14 new offices that opened in 2019, as well as a newly noted CIU in Alameda County, California. The locations of the new CIUs include Contra Costa County, California; Broward County (Fort Lauderdale), Florida; Fulton County (Atlanta), Georgia; and St. Louis County, Missouri. New Jersey and Michigan opened statewide CIUs in 2019 and Pennsylvania opened a statewide CIU in 2020.

The most common form of official misconduct documented in the Registry involves police or prosecutors concealing evidence that points to the defendant’s innocence. For example, Charles Finch was sentenced to death in 1976 and was exonerated in 2019 after spending almost 43 years in prison in North Carolina for a murder he did not commit. At trial, the prosecution presented testimony that pellets from a shotgun found in Mr. Finch’s car were “just like” pellets found in the victim’s body. The prosecution failed to disclose that the North Carolina State Bureau of Investigation had examined the pellets and was unable to find sufficient similarities. Decades later, attorneys at the Wrongful Conviction Clinic at Duke University School of Law obtained the ballistics report and other evidence that had never been disclosed to Mr. Finch or his attorneys. When he was released last year, Mr. Finch, at 81 years old and using a wheelchair, said, “I’m just glad to be free. I feel good.”

This summer, the Registry will launch a new section of exonerationregistry.org to document “group exonerations.” Group exonerations involve a pattern of misconduct by official actors; most often, it is police officers who repeatedly and systematically frame innocent defendants. The study of group exonerations is important for uncovering instances and patterns of official misconduct and preventing it in the future.

Read the report “Exonerations in 2019” at http://bit.ly/ExonsIn2019

Police departments being ravaged by COVID-19

More than a fifth of Detroit’s police force is quarantined; two officers have died from coronavirus and at least 39 have tested positive, including the chief of police. reported The Associated Press.

For the 2,200-person department, that has meant officers working doubles and swapping between units to fill patrols. And everyone has their temperature checked before they start work.

An increasing number of police departments around the country are watching their ranks get sick as the number of coronavirus cases explodes across the U.S. The growing tally raises questions about how laws can and should be enforced during the pandemic, and about how departments will hold up as the virus spreads among those whose work puts them at increased risk of infection.

 “I don’t think it’s too far to say that officers are scared out there,” said Sgt. Manny Ramirez, president of Fort Worth Police Officers Association.

Nearly 690 officers and civilian employees at police departments and sheriff’s offices around the country have tested positive for COVID-19, according to an Associated Press survey this week of over 40 law enforcement agencies, mostly in major cities. The number of those in isolation as they await test results is far higher in many places.

Anticipating shortages, police academies are accelerating coursework to provide reinforcements. Masks, gloves and huge volumes of hand sanitizer have been distributed. Roll call and staff meetings are happening outside, over the phone or online. Precinct offices, squad cars and equipment get deep cleaned in keeping with Centers for Disease Control and Prevention guidance.

Yet, many are worried it’s not enough. This week, groups representing American police and fire chiefs, sheriffs, mayors and county leaders asked President Donald Trump in a letter to use the Korean War-era Defense Production Act to ensure they have enough protective gear.

“We’re in war footing against an invisible enemy and we are on the verge of running out” of protective supplies, said Houston Police Chief Art Acevedo, president of the Major Cities Chiefs Association. “We’ve got hospitals calling police departments, police departments calling each other, and it’s time to nationalize in terms of our response.”

Police are accustomed to meeting staffing crunches by canceling vacations and leave, putting officers on 12-hour on, 12-hour off schedules and, when necessary, by shifting detectives and other specialized personnel to patrol.

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New York police report a drop in crime during pandemic

Measures adopted to stop the spread of the coronavirus in New York appear to have put a dent in crime, New York City’s police commissioner, reported the New York Times.
The drop in crime is not just in New York.  In fact, in Chicago, Detroit, Los Angeles and San Francisco, recent data show big drops in crime reports, week over week. The declines are even more significant when we compare this year with the same time periods in the three previous years.

Police Commissioner Dermot F. Shea, expressed concern about the persistence of violent crimes like robberies and shootings. And he specifically said he was troubled by a “dramatic” decline in reports of sexual assaults and domestic violence.

“We saw an immediate drop in most categories in crime,” Commissioner Shea said at a news briefing, when asked how the new restrictions on businesses had affected public safety.

Compared with the previous week, the police recorded 443 fewer serious crimes, like assault and burglary, in the week that ended on Sunday, a 24.5 percent decline. Officers also made 1,538 fewer arrests last week compared with the week before.

Last week, detectives received just 25 new complaints that met the federal threshold for rape, compared with 51 the week before. The number of other sex crimes reported fell to 62 last week, compared with 102 on March 15.

“Maybe I’m just glass half empty here,” Commissioner Shea said, “but I can’t imagine that the crimes aren’t happening. I’m sure that there’s many crimes happening.”

Mr. de Blasio noted a surge in bias attacks aimed at the city’s Asian residents, and he urged the victims of such crimes to contact the police right away.

As crime ebbed, more Police Department employees became infected. As of Tuesday, Commissioner Shea said, 211 department members had tested positive for the virus, including 177 uniformed officers.

Two of the city’s biggest police unions say the department is failing to inform officers when someone they have worked with has tested positive.

The Police Benevolent Association, which represents rank-and-file officers, has instructed members to log sick time or time spent in quarantine related to the virus on line-of-duty injury forms, while the Sergeants Benevolent Association has assigned its delegates to monitor commands for reports of new cases and exposures.

The goal, an official said, was to avoid something similar to what occurred after the Sept. 11, 2001, terrorist attacks, when many officers who worked to clean the wreckage at the World Trade Center site did not have records of the time they spent there.

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President wants to implement unprecedented tri-state cordon sanitaire

President Trump is not seeking to quarantine New York, New Jersey and Connecticut. He is seeking  authority to order a “cordon sanitaire” which is not just a quarantine it is the forceful dentition of people who are ill and not ill.  A cordon sanitaire is right out of a sci-fi movie--a state or states where no one can go in or out.
 Normally this authority rests with state governors.Such authority has far-reaching implications for those not yet infected. They are being forcefully detained in an area where infected persons remain.

The last known time that a cordon sanitaire was used was with towns in Zaire during the Ebola outbreak.

The government attempts to balance the good of the community with individual liberty. In times of international crisis, there is a heightened need to zealously protect those individual rights.