By Dick Hall-Sizemore

Governor Ralph Northam has announced that he will ask the General Assembly for authority to release from prison those offenders with a year or less to serve on their sentences in order to mitigate the spread of the coronavirus in prisons. He stressed that only those who have demonstrated good behavior and would not pose a threat to society would be eligible.

The vehicle for the request would be an amendment to the budget bill for the current fiscal, the “caboose” bill. That bill would take effect as soon as the Governor signs it.

In its latest release, DOC reported 26 offenders testing positive, with 6 of those being hospitalized. That is an increase of one in the total number, as well as one more in the hospital, from the previous day. The agency also reported 25 staff members testing positive, an increase of three from the previous day.

It is not clear how many offenders will be affected by the early-release proposal. The Richmond Times-Dispatch reported that the number potentially eligible was not available. However, the Daily Press reported the Secretary of Public Safety as saving that just under 2,000 would be eligible. It is not known if that is the number meeting all three criteria (time left to serve, good behavior, no threat to public safety) or just the number with a year or less to serve.

The number 2,000 seems too small, when compared to the total state-responsible population. Each year, approximately 10,000-12,000 of the approximately 36,000 state-responsible offenders are released from incarceration. (Another 12,000 or so are newly committed.) Therefore, over the next 12 months, the sentences of 10,000-12,000 state-responsible offenders will be finished and they will be released from custody. Even taking into consideration good behavior and threat to society, 2,000 seems too small.

One answer lies in the complexities of the Commonwealth’s corrections system. The state has approximately 30,000 prison beds. The remainder of the offenders convicted of a felony offense and eligible to be housed in a prison (“state-responsible”) must be housed in jails. Most of those state-responsible offenders housed in jails have sentences of less than 24 months. Each year, about 8,000 state-responsible offenders are released from jails without ever having to serve time in a prison. At any one time, there are approximately 6,000 state responsible inmates in local and regional jails. A significant portion of those likely have one year or less to serve on their sentences.

It does not seem that the Governor’s proposal would apply to those state-responsible offenders in jails. That seems inequitable. It may be that the Governor does not have the legal authority to effect those offenders’ release. That could be remedied with the wording of the proposed budget amendment.

Of course, it also seems inequitable that some state offenders with a year or less to serve get released early while local offenders in jails, convicted of a misdemeanor and having less than a year to serve, have to stay in jail. The budget amendment could address that situation, as well. But, the question quickly becomes: Where do we stop?

Implementing the Governor’s proposal will not be easy. Northam made it clear that the normal re-entry planning needs to take place. The key component is a home plan: where the offender will live when he is released. If he wants to live with family, the family must be willing to accept him. In a significant number of cases, family members will indicate a willingness to accept an offender upon release, only to change their minds as the date of release gets nearer. For those with no home, there are residential facilities or even motels, which can provide temporary shelter, but those are in short supply and, with the coronavirus crisis, many motels may be closed. Typically, counselors in the offenders’ institutions, working with the offenders and with the probation and parole officers in the localities to which the offenders will be released, develop the home plan. In the case of difficult cases, the staff in the central and regional offices get involved. All this coordination will be made much harder by the social distancing now required. Also, it will come on top of the home plans needing to be developed for offenders being released in ordinary due course.

The practical effect of the proposal will likely be less dramatic than it would seem on its face. The Governor’s proposal hopefully has been in the works for at least a couple of weeks. If so, DOC has had some time to begin preparing for it. Even so, it will be a major challenge. The result will be that not all 2,000 eligible offenders will be automatically released on the date the bill becomes effective. Northam made it clear that was not the case, only that the DOC director would have the discretion to release offenders for up to one year before their sentences expired. To what extent that happens will depend on how quickly DOC can move in the currently constrained environment.

Another complicating factor will be the supervision of any additional released offenders. Presumably, they will not be released unconditionally, but under probation supervision. (Most will have a court-ordered period of supervision, regardless.) Most probation officers are carrying higher caseloads than are recommended for proper supervision. The social distancing rules have undoubtedly made supervision of their caseloads harder. Additions to their caseload will make their work harder.

There is no doubt that many prisons are crowded. They have been for many years. DPB pushed DOC to make maximum use of its bed capacity. However, that crowding has been easing naturally in recent months. On the one hand, there has been the normal number of offenders released as their sentences were completed. On the other, at the beginning of the coronavirus emergency, DOC stopped intake of state-responsible offenders from the jails, thereby not filling those beds being vacated by released offenders.

Most of those offenders that will be newly eligible for release are likely housed in Level 1 or 2 facilities (low or medium low security), which are dormitory facilities. It would seem that those type facilities would be the ones in which offenders would be the most vulnerable to the spread of the coronavirus. However, only two of the four facilities in which inmates have tested positive are dormitory facilities (Haynesville and Central Virginia Correctional Unit). The most serious outbreak has been in the Virginia Correctional Center for Women, which is not a dormitory facility. The release of an additional 2,000 offenders (out of a total population of 29,000 spread over 38 facilities), at an undetermined rate, however well-intentioned, may make a difference in some of the dormitory facilities, but it is hard to imagine that it will have much effect elsewhere in the system.

To be fair to the Governor, however, he cannot just practically throw the prison gates open as some are advocating.