Delegate Cole joins call for Governor to release non-violent inmates during COVID-19

FREDERICKSBURG, Virginia— Delegate Joshua G. Cole, today, joined Delegates Caroll Foy, Guzman, Rasoul, Plum, Hudson, Adams, Scott, and Samirah as well as Senators Hashmi and Morrissey in calling for the Governor of Virginia to release non-violent inmates from Virginia prisoners during the COVID-19 epidemic.

“Our office has joined Delegate Sally Hudson and several of our colleagues in calling on the Governor of Virginia to release non-violent inmates to prevent the spread of COVID-19 in Virginia prisons.

Our jails and prisons were already overcrowded at twice their official holding capacity. This conditions are ideal for the spread of humancoronavirus. If we are actively trying to prevent sickness we must also extend the same protections to prisoners. A sentence to jail does not equate to a sentence to death.

We urge the Administration to take measures to abide by social-distancing standards by releasing non-violent and immunocompromised inmates.”

Delegate Cole also stated that there would be far more regret from the Administration in the long-run if they fail to release prisoners now.

“If inmates die in-holding, some never receiving a trial due to court closures, the Administration will have that blood on their hands. We aren’t just talking about non-violent people in jails and prisons, we’re talking about potential innocent people awaiting trial. Only releasing 37 inmates, as the Administration has currently done, is unacceptable.”

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Letter to Governor Northam, Secretary Thomasson, and Secretary Moran requesting for the release of prisoners during COVID-19 crisis

April 10, 2020

Dear Governor Northam, Secretary Thomasson, and Secretary Moran,

Throughout the COVID-19 pandemic, your Administration has maintained a clear message: the best way to combat the outbreak is social distancing. To limit infections and flatten the curve, we have to keep people apart.

Though most Virginians are heeding your order to stay home, some of our most vulnerable residents can’t. More than 57,000 Virginians are incarcerated in prisons, jails, and juvenile detention centers. Just like college campuses and nursing homes, these institutions are in danger of becoming COVID hotspots. The close quarters and constant churn breed infections even under the best conditions, and many of our jails and prisons fall well below that standard. Some facilities are overcrowded at twice their official capacity. Others have well-known records of substandard medical care. Many already have confirmed cases among those incarcerated, including prisons in Goochland and Chesterfield, a jail in Fairfax, and the Bon Air Juvenile Correctional Center. Even more have positive tests among staff. These facilities are deadly hotspots waiting to happen, and their outbreaks will accelerate the strain on our entire healthcare system.

There is only one solution — releasing more people — and we implore you to pursue it with all your authority. No other effort to relocate or quarantine infected inmates will slow the outbreak faster or save more lives. That’s why we urge you to enact the following measures:

Entrust the Parole Board to expedite review of inmates who are eligible for discretionary or geriatric parole. More than 2,500 inmates are currently eligible. Just 95 were approved last month, and they will likely wait several more months before their actual release. We know the Board is working overtime to review cases, and we greatly appreciate their work. We also understand that finding safe home plans and reentry services can be difficult. Communities across the Commonwealth are mobilizing in creative ways to house and support vulnerable people displaced by COVID-19, including frontline healthcare providers, students, and nursing home residents. Virginians residing in carceral facilities deserve the same public support during this crisis.

In reviewing cases, the Board should prioritize public safety over punishment, recognizing that the spread of COVID-19 in Virginia prisons threatens public health and therefore safety all across the Commonwealth. Anyone who meets the criteria narrowly defined in state code and does not pose a clear risk to others should be released.
Grant clemency to the inmates who are most at risk of dying from COVID-19 and those who are nearing their release dates. Specifically,
- Grant clemency to inmates with CDC-identified high-risk health conditions, including inmates age 50 and older. Research on accelerated aging in prisons finds that inmates’ physiological age averages 10 to 15 years older than their chronological age, which is why the National Institute of Corrections defines “older inmates” as 50 and older rather than 65 and up.
- Grant clemency to inmates in local or regional jails who are within 90 days of their release dates.
- Grant revocable pardons to inmates in DOC custody who are within one year of their release dates. These conditional pardons could require ongoing formal supervision through DOC.

The Secretaries of the Commonwealth and Public Safety have argued that the Governor cannot pardon categories of people given the Howell v. McAuliffe decision. We do not find adequate support for that reading. The Court observed, “Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind […] without regard for the nature of the crimes or any other individual circumstances relevant to the request.” Our request clearly outlines specific individual circumstances relevant to granting pardons during this pandemic.

Both Secretaries have also identified two administrative hurdles to granting clemency: Parole Board review and victim notification. We believe both steps can be expedited.

The state code does not require Parole Board review of clemency petitions. The statute says, “The Virginia Parole Board shall, at the request of the Governor, investigate and report to the Governor on cases in which executive clemency is sought.” In this State of Emergency, the Governor should waive that customary review.
The mandatory victim notice period is only 15 days, and the statute permits faster telephone notice if the standard period isn’t feasible. Given the urgency of slowing the virus’s spread, the Department could exercise the faster option. Either way, we know the pandemic will last months. We should start pardons now.

3. Releasing youth in custody is just as urgent, but the mechanisms can be even simpler. The Department of Juvenile Justice (DJJ) has broad statutory discretion to release youth who are indeterminately sentenced. Nearly 3/4 of youth in DJJ custody fall into this category, which would allow them to be released outright or to parole programs that can provide ongoing formal supervision. In keeping with the clemency guidelines outlined above, the Governor should direct DJJ to release the following indeterminately-sentenced youth:

youth with high-risk physical and mental health conditions
youth within 90 days of their Projected Length of Stay (LOS)
youth who (a) do not present an identifiable risk of serious physical harm to others and (b) are determined to have safe and supportive return-home plans or can safely be placed in alternative community-based, non-congregate arrangements

For the remaining one in four youth in DJJ custody for whom judges have prescribed determinate sentences, the DJJ still has strong persuasive authority to recommend that courts suspend the remainder of those sentences under the Serious Offender statute. The Governor should direct DJJ to recommend that courts release determinately-sentenced youth who satisfy the criteria above, as well.

The Governor should also direct DJJ to halt any new admissions to carceral or congregate facilities unless a direct, imminent, and specific threat to others is identified. And, in all cases, DJJ should collaborate with families and communities to assure safe and supportive transition plans that protect the health and safety of the youth and all involved.

Using the three tools outlined above, the Governor can save lives directly with executive authority. To ensure local leaders follow suit, he should also issue clear and specific statewide standards for reducing jail and juvenile detention center populations. We support the Governor’s initial recommendations issued on March 19, and we applaud the local officials who have already released inmates to home electronic incarceration, including those in Virginia Beach, Norfolk, and Albemarle. After three weeks of limited compliance, however, it’s clear that stronger guidance is needed. One Sheriff recently told the Richmond Times-Dispatch, “We feel that the jail is probably the safest environment to be in right now. It’s controlled, we have limited access, and we have 24-hour medical staff in place. You can’t guarantee that in the community. I think it’s doing a disservice to let them out of jail right now.” That stance is medically unsound. Jails are especially vulnerable to COVID-19 outbreaks due to their constant churn, and the Governor must use his authority as a physician to make that unequivocally clear.

Specifically, the Governor should:

Call upon all Commonwealth’s Attorneys to file motions to reconsider bond determinations for inmates held pretrial. Nearly half the jail population is pretrial. They have not been convicted of crimes, and they should not be condemned to infection. No one should be held pretrial due to failure to pay a secured bond or a lack of available pretrial services, including drug testing and substance abuse treatment, and no one should be held without bail for a misdemeanor offense regardless of prior Failure to Appear convictions.
The Governor must also provide local officials with clear guidance for identifying youth in local custody as candidates for release, in keeping with the priorities described in (4) .

Our public officials have a moral obligation to use their considerable power to recommend release for pretrial detainees, vulnerable inmates, and those nearing their release date wherever possible. As representatives of our respective communities, we stand ready to assist you in rallying our fellow elected leaders to meet the standards that you set.

All of these steps — early release, parole, clemency, bond determinations, and the discretionary release of youth — are concrete ways that state and local officials can confront the pandemic in our prisons and jails. We must use every tool at our disposal to reduce the inmate population and slow the spread of COVID-19. The Governors of Colorado, Kentucky, and Michigan have already acted to accelerate the release of thousands of inmates. Governor Northam must join them in saving lives.

We thank you for your Administration’s tireless work during this crisis, and we are eager to support you in executing this effort however we can.

Sincerely,

Delegate Jennifer Carroll Foy