The Legal Intelligencer
April 30, 2020
A week after the Pennsylvania Department of Corrections (DOC) announced that a prisoner had tested positive for COVID-19, Rudolph Sutton died in his cell at the State Correctional Facility (SCI) at Phoenix in Montgomery County. Sutton, 67 years old, died from pneumonia caused by COVID-19. He was the first inmate, and as of this writing, the only state inmate to die from the virus.
There are stories like Sutton’s all across the country. Sixty-year-old William Garrison died at the Macomb Correctional Facility in Michigan. He spent 44 years in prison and died of COVID-19 only 24 days before he was to be released from prison.
Michigan Department of Corrections officials have confirmed about 600 inmates, just over 40% of the prison population at Lakeland Correctional Facility in Coldwater, have tested positive for COVID-19.
Lakeland houses about 1,400 inmates, half of which are over the age of 55 or have chronic health conditions, said Chris Gautz, a Department of Corrections spokesperson.
He told WWMT-TV that the number of infected prisoners at Lakeland will grow as hundreds more test results return in the coming days.
In Ohio, 3,762 inmates have tested positive and nine have died in state correctional facilities. At the Marion Correction Facility alone, in north central Ohio, of 2,500 inmates, 2,011 have tested positive. The staff of 350 has had 154 test positive for COVID-19.
In North Carolina, 330 inmates out of 700 in a single facility tested positive. In Tennessee, 666 inmates have tested positive.
Pennsylvania has 42 infected inmates out of about 46,600 inmates. The Pennsylvania prison system doesn’t appear to have a problem with COVID-19. What the state does have a problem with is testing. As of April 22, the number of inmates tested by the Pennsylvania Department of Corrections was 103—with 31 positives tests or about one in three.
Maybe the tests just haven’t ramped up yet. Well as April 28, the last day that data was available for this column, the number of tests increased by only 34.
DOC staff isn’t getting much better attention. As of April 28, 299 correction employees have been tested.
Besides the obvious need for more testing, what is Pennsylvania doing to protect inmates and staff from COVID-19?
To start with, the DOC has temporarily designated SCI Retreat as the new intake site for all newly committed prisoners and parole violators. The facility, near Wilkes-Barre, has capacity for 350 inmates and will be the only way inmates can enter the system. With a bolstered medical staff and thorough screening the DOC hopes to limit the virus’s entry into the system.
In addition, Gov. Tom Wolf, exercising his authority under the Pennsylvania Constitution and the Emergency Management Services Code, 35 Pa.C.S.A. 7102, ordered the Department of Corrections to establish a Temporary Program to Reprieve Sentences of Incarceration to help aid the DOC in transferring qualified individuals to community corrections facilities or home confinement amid the pandemic.
“We can reduce our nonviolent prison population and leave fewer inmates at risk for contracting COVID-19 while maintaining public safety with this program,” Wolf said in a press release. The Temporary Program to Reprieve Sentences of Incarceration only applies to state prison inmates who have been identified as non-violent and who otherwise would be eligible for release within the next nine months or who are considered at high risk for complications of COVID-19 and are within 12 months of their release.
Vulnerable inmates include inmates aged 65 or older; anyone with an autoimmune disorder; pregnant inmates; anyone with a serious, chronic medical condition, such as, heart disease, diabetes, chronic respiratory disease, bone marrow or organ transplantation, severe obesity, kidney disease, liver disease, cancer or other medical condition that places the inmate at higher risk for complications of COVID-19.
Under the temporary reprieve program, the DOC estimated approximately 1,500 to 1,800 inmates may be released. As of April 23, 118 inmates have benefited by the Temporary Program to Reprieve Sentences of Incarceration.
What else is there?
The courts have the authority through Pa. C.S.A. Section 9777 to release extremely ill inmates. The law permits a judge to grant a temporary deferment of a prison sentence due to terminal or serious illness. Compassionate release, as the deferment program is generally known, has been interpreted by state courts to apply only to terminally ill inmates who have less than one year to live.
The process requires a letter from a treating physician which must include the medical prognosis and a certification that it is the doctor’s opinion that death is near.
Angus Love, executive director of the Pennsylvania Institutional Law Project, told the Pennsylvania Capital-Star, “Few doctors are willing to say with certainty when someone will die. That makes it hard for inmates to get the documents to petition a judge for release.”
In 2008, the legislature revoked the ability of a terminally ill inmate to pass his final days at home with family. Since then families had to find and pay for a hospital, nursing facility or hospice care to get their dying loved one out of prison.
Once the legislature took action the concept of compassionate release essentially disappeared. The law’s stringent guidelines are time-consuming and costly. The arduous process causes low risk inmates who were otherwise eligible for release to die alone behind bars.
What can the legislature do?
House Bill 642 introduced by state Reps. Stephen Kinsey and Danilo Burgos seeks to authorize medical parole. The legislation would authorize the Pennsylvania Board of Probation and Parole, in consultation with the Department of Corrections, to grant early medical parole under certain circumstances to eligible nonviolent offenders.
In February, before Pennsylvania realized the magnitude of COVID-19, Pennsylvania Corrections Secretary John Wetzel testified at a state budget hearing in support of medical parole. Besides touting the compassionate aspect of release for those who are ill and a low risk, he also touted the economic value of medical parole. Wetzel estimated that medical parole could save the state at least $22 million a year.
Geriatric inmates cost a lot of money. Pennsylvania’s geriatric prisoner population grew to about 6,500 inmates in 2018, according to the DOC.
Pennsylvania has units in several facilities that actually serve as prison nursing homes. There are inmates in Pennsylvania prisons who need dialysis, chemotherapy or other life-sustaining treatment.
Those people don’t belong in prison. Today they’re at a high risk of contracting COVID-19, they are at low, or no, risk of re-offending, and they cost Pennsylvania taxpayers a whole lot of money.
So, what is the argument for keeping the ill and infirm in prison?
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His weekly column on crime and punishment is syndicated by GateHouse Media. He is the author of “The Executioner’s Toll,” 2010. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE