Under normal circumstances, jails and prisons are horrible places. The incarcerated housed in them are sitting ducks for contagion. So when a public health emergency such as covid-19 sweeps the globe, penal institutions can become incubators for pandemics.
Days after that prisoner died, a bipartisan group of criminal justice advocates sent a letter to Trump urging him to commute the sentences of prisoners most vulnerable to coronavirus. Attorney General William P. Barr then issued a memorandum on March 26 that gives the BOP the ability to release certain prisoners to home confinement. One of the signatories of that message to Trump was underwhelmed.
“While we were heartened to hear Attorney General William Barr admit that he shares widespread concerns that federal prisons could become ‘petri dishes’ for the spread of the coronavirus, and acknowledge that some prisoners would be better off serving their time in home confinement, we were distressed by the memo he released placing significant restrictions on what individuals would be eligible to return home,” said Holly Harris, president and executive director of the Justice Action Network, in a statement. She added she has no faith that the BOP will even act on that authority without an explicit order from the president.
Harris, a former general counsel to the Kentucky Republican Party, was a guest on my podcast “Cape Up” in 2018 talking about the need for criminal justice reform from the political right. She returned to the podcast last week to implore Trump to issue an executive order to release elderly nonviolent prisoners from federal custody in light of the coronavirus. After all, Trump said, “We are actually looking at that, yes,” in response to a question at a coronavirus briefing-turned-campaign rally at the White House on March 22.
“We’ve asked the president to expedite, facilitate the transfer of elderly prisoners, people with preexisting conditions who are more susceptible to transmission of the virus and to spreading the virus and certainly those who have been incarcerated for low-level, nonviolent offenses who have very little time left on their sentences, to transfer these individuals to home confinement,” Harris told me. “We’re not just saying, ‘Open the doors. Open the floodgates.’ We’re saying, ‘Transfer these individuals to home confinement.’ Many of them already have families waiting on them, ready to care for them. Why are we keeping them incarcerated when they’re more susceptible to the disease?”
According to a report from Prison Policy Initiative, there are nearly 2.3 million people incarcerated in federal, state and local prisons, jails and other correctional facilities in the United States. The Federal Bureau of Prisons houses only a portion of that population, more than 175,000 people. That means governors have enormous power to grant clemency to certain prisoners in their states.
“There are things that these governors can do in our states around the country that can help to expedite the release of people in these categories opposed to keeping them locked in these incubators,” said Topeka K. Sam, co-founder and senior adviser to New Yorkers United for Justice. Pointing to Gov. Andrew M. Cuomo (D-N.Y.), Sam noted that he could use his executive power to release vulnerable people and those with short sentences.
“If you are actually helping to release some of the population that’s in, then not only are you protecting the inside population, but you’re also protecting the people who are serving and working in these institutions,” Sam added later.
Sam, who joined Harris on the podcast last week, brought an extra perspective to the conversation. She served three years in a federal prison on drug conspiracy charges and talked about why social distancing is impossible while incarcerated.
“I was locked in a cell up to 21 hours a day. And sometimes, when there was overcrowding and not enough beds, it was three people to a cell. And that meant we went to the bathroom in the same cell,” Sam said about her time in a county jail. “You’re thinking about bacteria. Many times, when you go to take a shower, these institutions are so old and there’s mold in them. It’s already a breeding ground for bacteria and disease.” And the dangers, she said, followed her after she was released to a federal halfway house, where she got an abscess that forced her to go to the hospital. “It had never happened in my 39 years, at that time, of life. But it wasn’t until I went into a federal halfway house that that happened,” Sam said.
Sam was one of the activists behind the October 2017 Mic video featuring Alice Johnson that caught the attention of Kim Kardashian. The reality television star then brought it to Trump, who granted clemency to Johnson in June 2018. I asked both Sam and Harris what they would say to Trump if they had a chance to meet with him. Their responses mixed purpose with the praise needed to get his attention.
“President Trump, right now, you have a great opportunity to continue to do the good that you’ve done with implementing the First Step Act and using your executive power for clemency. I ask that you go right back to the legislation that you once approved, that you give people compassionate release,” Sam told me.
“President Trump, you’re the one who always says that you are sick of the swamp. Well, guess what? The swamp didn’t get it done. Congress fell short in the phase three [coronavirus relief] package and didn’t do enough to address this burgeoning crisis in our prisons that’s gonna spread all over our country,” Harris said. “You are seeing the grass roots, sheriffs, jailers, prosecutors, judges all over this country working together to safely reduce incarceration in the states. And so now is the time to take action at the federal level and you’re the only one that can do it.”
Tick-tock, Mr. President. The same goes for governors who have the power to keep their jails from becoming uncontrolled breeding grounds of a disease killing thousands worldwide.
Follow Jonathan on Twitter: @Capehartj. Subscribe to Cape Up, Jonathan Capehart’s weekly podcast.
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