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.
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