Advocates Tell NJ Supreme Court State Needs to Move Faster to Protect Prisoners from COVID-19

Assistant attorney general argues state moving quickly as it can, but ACLU-NJ and public defender want court to cut through red tape, arguing lives are on the line
The New Jersey Supreme Court held a virtual hearing Wednesday on the issue of prisoner release because of COVID-19 concerns.

Attorneys advocating for the release of inmates at risk of contracting COVID-19 told the New Jersey Supreme Court Wednesday that the state has not moved fast enough to protect these prisoners. But an assistant attorney general argued that state agencies are acting as quickly as they can.

The justices are expected to rule speedily on the request from the ACLU-NJ and state public defender. They want the Court to implement a simpler, more efficent process than the one Gov. Phil Murphy put in place April 10 to allow for the early parole or temporary furlough of nonviolent, at-risk offenders from prisons and halfway houses. The ACLU request would allow nonviolent offenders within a year of the end of their sentences to be released, barring safety or other concerns.

Much of the discussion Wednesday revolved around whether those deemed eligible based on the four conditions specified in Murphy’s order, but denied release, have the right to know why they were turned down and to appeal. In court papers, the public defender’s office provided examples of people with lung problems and other ailments who were either not included in the 3,050 deemed eligible for release or not informed why their release was denied.

“The commissioner (of corrections) cannot be making decisions based on whims,” said Associate Justice Barry Albin, referring to the four criteria specified in Murphy’s order that make a nonviolent offender eligible for furlough or parole.

The ACLU-NJ and the public defender emphasized the seriousness of the issue by reminding the justices that 43 prisoners and reportedly three staff have already died in custody and New Jersey has the highest inmate death rate in the nation, according to a review by the Marshall Project.

First figures on paroles

The 3 1/2-hour virtual court hearing yielded the first complete count of releases to date. Neither the state Department of Corrections nor the State Parole Board are providing information to the public online. The parole board has not even given out information on paroles when asked by reporters.

According to a letter sent Tuesday to the court, the state has so far released 337 individuals: 174 on parole and 183 on emergency medical home confinement, although 17 of the latter have already been returned to custody for violating the terms of their temporary release. That’s 31 fewer than the 368 that Matt Platkin, Murphy’s chief counsel, said had been released when he was asked on May 15. The number released as of Tuesday represents 11% of those deemed eligible for consideration under the terms of the order, issued almost seven weeks ago, and just 1.7% of the total state prison population.

State Public Defender Joseph Krakora described the impact of the coronavirus on the prison system as “catastrophic” and said the low number of prisoners released proves a “failure by the governor’s executive order to have alleviated the crisis in any significant fashion.” He noted that the parole board has so far denied 1,900 of those eligible — 81% of those it has so far considered — with another 256 applications pending.

“In essence, the warehousing of affected people is alarming and very discouraging,” Krakora said, adding the reduction in the prison population to date has had “no effect whatsoever” on prisoners’ ability to social distance, which state health officials have said repeatedly is the best way to avoid getting the virus.

Assistant Attorney General Stephanie Cohen, however, said that conditions within the prisons are greatly improved, with fewer hospitalizations and deaths due to COVID-19 since the peak in April, although she did not have data to support that statement. A review of the DOC’s inmate-search website lists 42 inmates as deceased since the first case was confirmed in New Jersey on March 4. In April,  29 died and 13 in May, with the most recent death on May 21.

Number of infected inmates keeps climbing

The number of infected prisoners continues to rise precipitously, but that is in part because early on, the DOC was testing only the most seriously ill and the department has only begun testing all inmates within the last weeks. As of Wednesday night, almost 1,600 prisoners and 743 staff had tested positive for COVID-19. That represented a 67% increase in the number of inmates affected and 2% increase in staff in five days. With about 62% of the prison population now tested, roughly 14% have tested positive for the virus.

While the DOC states it has ramped up sanitization efforts, given inmates masks, quarantined inmates when necessary and taken other steps to minimize the transmission of the disease, advocates for the incarcerated say that still may not be enough.

Jean Ross of People’s Organization for Progress (POP) shared an email from a man in South Woods State Prison, which has been designated as the site for those needing medical care, in which he said he and 61 other men who have tested negative are housed in the same wing as 62 men who have tested positive. Those who are negative are on one floor while those who are positive are on the floor above them.

“They are only letting out 12 men at a time for 20 minutes to use the phone, kiosks, and showers and so far they’ve only started with the flats,” the man wrote. “But I am assuming that at some point, they will have to allow the men on the mezzanine to use the phones, kiosks and showers also. Which means that at that point, we will be sharing the same showers, phones and kiosks as those with the virus. This prison does not have any windows we can open and we are simply sitting on this unit breathing recycled air that comes in through vents that we share with everyone … We have not been given any information by custody, administration, or medical, as to if they are planning on moving anyone, whether we are in danger of contracting the virus by being on this unit or anything else for that matter.”

Impossible to keep COVID-19 behind bars

Ross and other advocates, in a letter sent Tuesday to Murphy,  asked the governor to do more, repeating an argument the ACLU-NJ’s Alexander Shalom made to the court Wednesday, that illness in the prison does not stay there, but comes home with guards and other staff and can spread to their families and those they encounter in supermarkets or elsewhere.

“Since a more significant reduction of the prison population is a precondition to meaningful prevention, containment and treatment, in the current state of clinical knowledge, we are imploring you do to more,” the advocates wrote in urging Murphy to grant clemency to all elderly prisoners identified as not posing a threat, regardless of their prior offenses. If he does not do so, they argued, “Prisoners will continue to die in the cages of New Jersey’s ancient and rotting prisons, and state workers, will unnecessarily fall sick and threaten the health of their families and communities.”

In response, a spokesman for the governor said, “The Administration continues to evaluate the processes in place to protect at-risk populations in our correctional facilities.”

There was debate in court over the reasons why furloughs or releases were denied and how much information is provided to prisoners so they might be able to appeal a denial. Until now, when lawyers have brought individuals’ requests for furlough to the Superior Court judges, these have been at least postponed while the process created by Murphy’s order plays out. Albin noted that an individual who has not been given the reason for the denial of his release cannot reasonably pursue an appeal of that denial.

Cohen said the furlough decisions, which are ultimately made by Corrections Commissioner Marcus Hicks under the executive order, are akin to the transfers of individuals to other prison facilities — which are not appealable — because the individual furloughed remains under DOC custody.

Albin challenged that, saying, “We’re talking about a health crisis of unique proportions, a pandemic, where the commissioner or the parole board are making life altering decisions. Does that distinguish these cases from those cases?”

Chief Justice Stuart Rabner went further, asking whether the executive order provides a presumption of release to those who meet the eligibility criteria — age 60 or older with or without an underlying medical condition, anyone with such a condition, those within 90 days of release and those denied parole within the last year — and do not present a threat to public safety.

“Nothing in Executive Order 124 creates rights for these individuals … to expect that they will be released,” Cohen said. “There are things that the commissioner ultimately has in his discretion.”

Why inmates are still in prison

In court filings, the state enumerated a number of reasons why people have not been released, or why it has taken so long. These include the inability until recently to test individuals before they were released due to a lack of testing supplies. There have also been issues related to an inability to find appropriate housing for those who would otherwise be eligible.

Shalom, supervising attorney with the ACLU-NJ, said housing is not a legitimate reason for denial in many cases because corrections and parole officials have “rebuffed” numerous offers from both the public advocate and those working in the reentry field to help place those who may not otherwise have appropriate housing in vacant motels, special shelters or with other family members.

“The risk in prison is far greater than outside it,” he said. “By everyone’s acknowledgement, it is somewhere between extremely difficult and totally impossible to socially distance in prison.”

Among those approved but still waiting for release are 50 scheduled for furlough — most of these are awaiting proof from a COVID-19 test that they do not have the virus — and 271 whose parole was OK’d.