COVID-19 Leads To More ‘Discretionary Releases’ From Prison, But Advocates Say It’s Not Enough
State officials have been issuing “discretionary releases” — when incarcerated people are released from prison or jail to state supervision before the end of their sentence — at a rate not seen in at least a decade, according to an analysis by the CT Mirror.
Advocates for the incarcerated insist they can go further.
Groups like the Katal Center for Equity, Health and Justice and the ACLU of Connecticut have clamored for large-scale releases to protect inmates from catching COVID-19 in a correctional facility, where social distancing is virtually impossible and medical care has historically been strained. Their demands underscore a fast-growing urgency: Three incarcerated people have died from COVID-19 since Dec. 17.
Prison officials, wary of releasing too many people and compromising public safety or threatening public health during the pandemic, are taking a narrower and more cautious approach to releases than the advocates would like and point to the fact that there are roughly 3,200 fewer people behind bars since March 1 as proof that it’s working.
“Some of the key considerations are, ‘Are those individuals able to be received by family, a friend, a loved one or a halfway house?’ And then, ‘Are they going to have an opportunity for a job? Are they going to have an opportunity for education, are they going to have an opportunity for mental health services, health care services?’” Max Reiss, Gov. Ned Lamont’s spokesman, said of the questions that corrections officials answer when determining whether to grant someone discretionary release. “The community reentry has been such a hallmark of the Department of Correction and across our state agencies, to make sure that those individuals don’t just end up back in society without assistance.”
“Discretionary releases” refer to an array of release mechanisms that essentially transfer a person’s sentence from prison to the community, where they are subjected to state supervision. The most well-known example is parole.
Not every person in prison or jail qualifies, said Marc Pelka, Lamont’s undersecretary for criminal justice policy and planning.
“A large portion of the on-hand sentenced population is not eligible for discretionary release for several reasons,” Pelka said in an email. “A short list of examples include but are not limited to: the person’s minimum time served relative to the sentence, the person has a separate pending criminal case, the person is on special parole remand, the person waives consideration for a discretionary release mechanism, the person is in a restrictive status following an act of violence, or the release review has been continued for additional programming.”
The central tension between the advocates and state officials centers on who is eligible for release. To groups like the ACLU, extraordinary times require more extraordinary action — they contend that the DOC commissioner and the governor should use their expansive authority to further reduce the incarcerated population and save lives.
The governor and the DOC commissioner have wide latitude in releasing people from correctional facilities. Thanks to his emergency powers, Gov. Ned Lamont can modify or suspend any statute or regulation “for protecting the health and safety of inmates of state institutions and children in schools.”
The state constitution also gives him the authority to grant reprieves to people who have been convicted of crimes.
The DOC commissioner, meanwhile, can release inmates held pre-trial on most misdemeanors and certain felonies, but there would be conditions placed on their release that, if violated, could put them back in jail. Other statutes allow the commissioner to release certain incarcerated people to home confinement or to a temporary furlough, or to nursing homes.
The state’s argument that it has released a larger portion of the prison population this year than in recent years “is entirely irrelevant in a moment when the governor has the power to release practically anyone within the DOC population,” said Melvin Medina, public policy and advocacy director for the ACLU of Connecticut, which has twice sued the state over its handling of the pandemic in correctional facilities. “So then, we’re back where we were in March: The governor has the power to respond in an exceptional and historic way, to save lives, and he has chosen to not do that. That’s the story of Gov. Lamont’s response to the COVID pandemic for incarcerated people.”
Reducing prison populations with the laws on the books
A person’s sentence generally ends in one of two ways: it reaches the maximum end of the term, or it ends early through discretionary release, which includes parole, a reentry furlough or transitional supervision. The CT Mirror’s analysis found that the proportion of sentenced inmates receiving discretionary releases reached a 10-year high in the first half of the year.
The uptick in discretionary releases is, in part, why roughly 3,200 fewer people were locked up in early December than on March 1. But the population decline is maintained by the lack of incarcerated people entering the system, which at times dropped more dramatically than releases increased this year, as a percentage of the sentenced population. In other words, fewer people are going in the front door to replace the people who are being released.
The census in correctional facilities fell without Connecticut officials ordering a mass release of people in prison, as authorities did in New Jersey. Karen Martucci, the Department of Correction’s director of external affairs, said her agency granted discretionary releases and reduced the incarcerated population without compromising on completing their risk assessments, checking in with victims, helping set up medical and mental health care on the outside and confirming incarcerated people have a place to live when they’re out of prison or jail.
“We did not circumvent any of those very critical pieces that make sure somebody lands in the community that’s set up for success,” Martucci said.
Before the pandemic, the DOC would release between 50 and 60 inmates each month who had reached the end of their sentence and didn’t have an apartment or home in which to live. Thanks in part to a partnership with the Connecticut Coalition to End Homelessness and grants to provide rapid rehousing services to incarcerated individuals, Martucci said, the number of inmates released into homelessness each month has decreased to about 25.
Martucci said that during the COVID-19 era, the DOC has seen an increase in instances where families initially declined to offer a place to live to someone leaving incarceration but reconsidered and decided to serve as a sponsor.
“We speculate that the uncertainty of the pandemic may have contributed to this,” Martucci wrote in an email.
Despite the dramatic drop in the incarcerated population, people of color continue to be overrepresented in the prison system — and racial disparities have gotten worse during the pandemic.
As of Dec. 1, Black and Hispanic people combined made up nearly 72 percent of the incarcerated population. On March 1, they made up slightly less than 70 percent of those behind bars. According to the U.S. Census, non-Hispanic Black people make up roughly 11 percent of the state’s population, while Hispanic or Latino people are almost 17 percent of residents. Whites make up almost three-quarters of Connecticut’s population.
Medina suggested the worsening racial disparities could in part be due to ineligibility for discretionary releases because of persisting racial inequities in the state, such as access to housing.
“What that means is we don’t believe the governor, or DOC staff, are taking into account a racial equity lens when they’re thinking about releases,” Medina said. “It says to me there isn’t much planning if I’m looking at their releases and I’m seeing Black and Latino people left behind, as has been the case throughout the history of the DOC.”
Pleas for release
As of this week, 13 incarcerated people have died from COVID-19, 227 inmates have the virus and are showing symptoms, and 204 are asymptomatic. At least 2,500 have contracted COVID-19 since the onset of the pandemic.
The reduction in the prison population has led to more space in the corrections system, Martucci said. Willard-Cybulski, York and Carl Robinson Correctional Institutions had seen a combined decline of 1,653 incarcerated individuals between March 1 and Dec. 2.
There were 3,237 fewer people in correctional facilities on Dec. 21 than on March 1.
“The push to release people in congregate settings all across the country is actually taking place safely here in Connecticut,” Martucci said in an email. “The reduction in the population allows us to reduce capacity in dormitory settings, enhance social distancing and provides the space to manage quarantine and medical isolation units.”
Of particular note is York Correctional Institution, the state’s prison for women. The Niantic correctional facility’s population reached a historic low recently — fewer than 500 people are currently being held there. But the decline is little comfort to those still locked up and little solace for their worried families. An outbreak prompted a partial lockdown earlier this month.
Noel Rodriguez’ mother, Madeline Griffin, is incarcerated at York and recently contracted the virus. She’s 50 years old and has hypertension, diabetes, asthma and a history of cancer.
“With all her medical conditions, I was hoping she could just survive long enough so she could get treatment from the community,” Rodriguez said. “But now that she has COVID, I’m hoping that she doesn’t die.”
The effect on victims
Another reason state officials are walking a tightrope in issuing discretionary releases: the impact on victims.
The concept behind discretionary releases — letting people out of prison before the end of their sentence — can create a general sense of unease for victims of crime, said Beth Hamilton, executive director of the Connecticut Alliance to End Sexual Violence.
“Generally, it makes victims and survivors feel less safe, sort of moving through the world,” Hamilton said. “They feel like offenders are being released, that they’re not being held accountable for the crimes that they committed.”
Victims have a right to make a statement during parole hearings about the impact the crime has had on their lives and their thoughts on the person’s release from prison.
“The testimony holds as much weight as the person listening to it thinks it does,” said Natasha Pierre, the state’s Victim Advocate.
Hamilton said many survivors of sexual violence are apprehensive about seeing a case through the criminal legal system to begin with. It’s a complex system that takes a lot of work to navigate, and it requires survivors to relive perhaps the most traumatic experiences of their lives.
“And so I think for those survivors who really stick out the process, stick there through the whole thing, in the end, they really have an expectation that the criminal justice system is going to hold up their end. They have an expectation that this person is going to stay incarcerated, because that was the agreement that was made,” Hamilton said, explaining that discretionary releases can leave survivors feeling “doubly traumatized,” both by the crime and the criminal justice system, for “not taking seriously the crime that was committed against them.”
The line between victims and perpetrators of crime is often blurred. Research shows that many people in correctional facilities were once victims of abuse or suffered trauma themselves.
“Nobody is born with the intent to cause harm to others,” said Debra Martinez, whose sibling is serving a life sentence without the possibility of parole. “My brother says it best: he says, ‘Thugs are not born. They’re made. They’re created.'”
As both an advocate for the incarcerated and a survivor of crime — she was sexually assaulted when she was 14 — Martinez has an especially nuanced perspective on discretionary releases during COVID-19.
“I know what it’s like to be pumping gas, and you look up and all of a sudden you see the face of someone who destroyed your life and destroyed your family, and be unable to move,” she said.
But she also knows what it’s like to have someone she loves locked up, someone she would “cut off a limb” for, if it meant he would be released to home confinement.
“They’re never going to free them all. That’s the reality,” Martinez said. “So, what’s the compromise?”
To Martinez, the answer is to broaden the eligibility criteria for discretionary releases and changing protocols so more people can be let out, while at the same time considering their recent disciplinary history during their incarceration. It’s a matter of “thoughtfully releasing” people, she explained.
“Not everybody who is in prison is a current threat to society,” she said. “I think you need to thoughtfully release, and that’s how you respect us, as victims.”