In New Jersey, there has been an outbreak of COVID-19 in the state’s prisons. Over a three-day span in mid-May, there were 150 reported new cases, and by that time, 42 inmates had died in state prisons. As a result, COVID-19 has forced changes in the way inmates are sentenced and serve time, allowing some to remain out of prison for their sentence.
One of the main changes with sentencing during the time of COVID-19 revolves around the recognition that jails have become hot spots for the spread of the pandemic. There have been numerous reports around the country of prisoners being sickened in prison. Officials are almost completely unable to stop the spread of the pandemic behind bars as jails are difficult to sanitize and prisoners are confined together in close quarters.
There are approximately 20,000 inmates in the state of New Jersey. The infection rates among these inmates have been alarming. Certain prisons in the state have been hit very hard by COVID-19. For example, there were 105 cases at the Mountainview Youth Correctional Facility. At the Edna Mahan Correctional Facility, by mid-May, there were 73 cases of COVID-19 among corrections officers and another 47 among inmates. There have been horrifying reports about the conditions that some of these prisoners faced with the jail using solitary confinement cells as a COVID-19 isolation unit and housing many prisoners in a small cell.
Governor Murphy acted relatively early with an executive order allowing the release of certain prisoners who were judged as being higher-risk inmates when it comes to the pandemic. In New Jersey prisons, there are four categories of prisoners who are a priority for furloughs. These include:
In New Jersey, the inmates would qualify for temporary and not permanent release. When the COVID-19 danger passes, they would be required to report back to prison. This is with the exception of inmates who have been paroled during this time. New Jersey instructed the Department of Corrections to review inmates’ files to see which ones can be paroled.
By June, the number had grown to more than 400, but the New Jersey Supreme Court ruled that the state was illegally operating the furlough program. The main problem was that the state had violated prisoners’ due process rights by operating this program in secret and not sharing information with the inmates and their attorneys. The court directed the state to move faster when it comes to furloughs and paroles since New Jersey has the highest rate of inmate death from COVID-19 in the country. As a result, now would be an advantageous time to contact a Morristown criminal defense lawyer to try to act on an inmate’s behalf.
The inmates who are released early from prisons generally do not have their sentences commuted. In other words, an early release is not the same as parole where the inmate is generally free to move about, subject to certain conditions. In these cases, the early release means that prisoners are required to remain at home or in one location for the duration of their sentence. They are still subject to the criminal justice system.
In the case of New Jersey, the state’s judiciary issued guidance on May 1 for sentencing proceedings. Judges have the discretion to hold sentencing hearings by video or remotely but only if all parties (including the defendant) consent to it. If the sentencing is held, then the custodial part of the sentence could include state prison. However, the judge has other options than state prison. It is up to the judge to weigh all of the risks to the defendant and public safety in making a determination whether the sentence should begin right now. The judge has the option to order a sentence other than state prison or to stay the sentence for the time being.
Law enforcement has been flexible in some regard when it comes to sentencing. Dangerous criminals will still be sent to prison for sentences. There would be public safety issues with keeping these criminals out of prison that would outweigh the health interest of protecting the sentenced defendants. However, some criminals may be able to remain outside of prison when they are awaiting trial or sentencing. For example, the well-known lawyer Michael Avenatti was allowed to leave prison while he awaits trial in his federal case because he is at a heightened risk of serious complications from COVID-19.
In addition, nonviolent offenders are also being allowed to serve out their sentences at home in certain cases in the federal prison system whereas minimum-security prisoners have been sent home in large numbers. You have certainly heard of Paul Manafort and Michael Cohen. They were both nonviolent offenders in the federal system who have been allowed to leave prison and serve the remainder of their sentences at home under house arrest. Unlike New Jersey, the federal release is an early release to home confinement as opposed to a furlough where the inmate would need to return to prison at a later date.
Many inmates who are currently in prison have tried to argue that they are entitled to a compassionate release due to the threat of COVID-19. It is the prisoners who are considered a higher health risk who have a greater chance of winning early release from prison. Those with overlapping health conditions have been successful in winning early release in some cases.
The federal release program, as directed by Attorney General Barr, uses the following criteria:
However, in the federal system, the rate of prisoner release has also remained low. Some prisoners have sued to try to win an early release. In at least one case, the Trump administration has intervened in court to try to stop the early release of that prisoner. Nonetheless, inmates are filing cases in federal courts attempting to win their release from prison due to COVID-19.
Inmates or the families of those who are imprisoned or awaiting jail time who are concerned about their risk for COVID-19 should contact Morristown criminal defense lawyer Gregg Wisotsky at (973) 898-0161 to learn more about their legal rights.