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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