by Remy Servis, WFU JD/MA in Bioethics Candidate ’22
Amidst the 2020 COVID-19 pandemic in the United States, incarcerated people have been one of the most at-risk subgroups, contracting the virus at a rate five times higher than the national average. Due to overcrowded conditions in prisons and jails, this population has limited opportunity to effectively socially distance, and infection rates are exacerbated by squalid conditions, limited testing, and violence within correctional facilities. Incarcerated persons represent a more vulnerable sector of the population, reflecting the disparities in social determinants of health that affect groups more likely to be incarcerated: racial minorities, those with unstable housing, and those with mental illness. In particular, prisoners over the age of fifty-five experience a uniquely threatening sum of risk due to the uncontroverted finding that COVID-19 has been particularly deadly to older adults, with 80% of deaths in US occurring in patients aged sixty-five and older.
Early in the pandemic, advocates across the country began to call for the early release of incarcerated people who pose a low risk to society, including the elderly and nonviolent. Scholars highlighted how this type of release would assist with “flattening the curve” by removing volume from correctional institutions which are “notorious incubators and amplifiers of infectious diseases.” Regarding the provision of early release, North Carolina has two laws on the books: “Medical Release of Inmates”, passed in 2008 and codified at N.C. Gen. Stat. § 15A-1369, and N.C. Gen. Stat. § 148-4, which provides for state discretion in granting “Extended Limits of Confinement” (ELC). Both of these statutory options have their strengths and weaknesses, but the state has chosen to utilize its more amorphous powers under ELC to mitigate the release of select inmates. However, due to disappointingly narrow release criteria, only about 300 inmates (out of 34,000 total in state facilities) have been granted this ELC privilege. Meanwhile, 3,000 inmates, or close to 10% of the prison population, have tested positive. The ELC law, as it is currently formulated, is a lackluster response from the state of North Carolina to the threat of coronavirus in the state prison population. These ELC policies and eligibility criteria should be appropriately modified given the deadly context of this pandemic and any future virulent public health emergencies.
Of the approximately 34,000 people currently in North Carolina state prisons, more than 8000 are over the age of 50, and more than 1200 are over the age of 65. These elderly inmates are more likely to have multiple, serious health conditions that in a normal year are taxing on the state’s ability to provide sufficient medical personnel, equipment, and care. In 2008, North Carolina passed its Medical Release Law, largely in response to concerns about these aging inmates who were utilizing a disproportionate amount of the state correctional system’s medical budget. The statute allows for nonviolent inmates who are incapacitated – by permanent and total disability, terminal illness, or geriatric chronic conditions – to be released under conditions set by the Parole Commission. However, “release” under this procedure is qualified; if the Parole Commission determines that an inmate’s physical condition improves sufficiently, they may be reincarcerated. The law closely tracks its federal cousin, the Compassionate Release statute codified at 18 U.S.C. § 3582(c)(1)(A). The most striking similarity between the two is the rarity with which they are used; less than two dozen inmates are released per year under each of these schemes. The most recent data regarding North Carolina’s medical release program are from the early 2010s; the nonprofit Families Against Mandatory Minimums (FAMM) noted in a 2018 report that North Carolina has stopped releasing the numbers of prisoners proposed, considered, and released under this framework despite the statutory requirement from the NC Department of Public Safety to do so.
Given the lame-duck nature of the Medical Release provision, it come as no surprise that North Carolina has chosen to utilize an alternative statutory option, Extended Limits of Confinement (ELC) to address release of certain inmates during the pandemic. Under N.C. Gen. Stat. § 148-4(2), the “Secretary of Public Safety may extend the limits of the place of confinement of a prisoner . . . by authorizing him, under prescribed conditions, to leave the confines of that place unaccompanied . . . to obtain medical services not otherwise available.” The statute generally uncouples early release from medical requirements, including more flexibility for the state to allow ELC for other reasons like job seeking and maternity leave.
However, it wasn’t the state’s pioneering leadership that led to the ELC provisions being invoked to combat the pandemic. On April 3, following public outcry from the ACLU and other public health experts in the state to address prison spread of COVID-19, various state civil rights organizations filed suit against the government to force Governor Roy Cooper to release people from prison. Ten days later, state prison officials announced they would commence with some early release under ELC, an “extraordinary measure” given the threat of the pandemic. To be considered for ELC, inmates cannot be serving a sentence for a crime against a person (“violent” crime). Additionally, they have to fall within one of the following categories:
- 65 and older with a release date in 2020-2022
- Have a 2020/2021 release date and “underlying health conditions deemed by CDC that increase a person’s risk of severe illness from COVID-19”
- Already on home leave with a 2020/2021 release date
- Already on work release with a 2020/2021 release date
These are the current qualifications, which were modified twice to widen inclusivity in the four months following the April announcement. While this reformulation of eligibility attempts to target older, vulnerable inmates, the policy maintains an inexplicable link to release date. These criteria have led to the release of just 1% of the NC prison population, or less than 8 inmates per state prison – a completely negligible impact that has not seriously forwarded the state’s goal of reducing prison volume.
With the coronavirus raging on, North Carolina citizens continue to protest the state’s mediocre ELC response and lack of overall transparency. In September 2020, organizers, advocates and family members of inmates protested at the NC Correctional Institute for Women in Raleigh, demanding further action from Governor Cooper to commute sentences for those most at risk of contracting COVID-19.
While the North Carolina ELC law has real potential to protect inmates, it must be dramatically expanded in order for it to effectuate real change. Other states have grappled with similar types of early release laws, and many encounter comparable obstacles when trying to balance safety and effectiveness. Most state compassionate release or ELC policies have eligibility qualifications that are just too narrow to allow the policy to gain any sort of momentum. Even South Carolina, a state considered to be a “national leader” in reducing its prison population, struggles with the efficiency of its compassionate release law, which seems relatively broad on its face. It allows geriatric release for inmates who are 70 or older and dealing with a chronic condition related to “aging”, and yet less than 30 people a year are referred for this type of parole.
South Carolina’s experience demonstrates that changes to North Carolina’s ELC law must be sweeping and substantive. Instead of imposing hard-to-meet eligibility criteria linked to age and scheduled release date, there needs to be comprehensive and holistic assessment of older prisoners, especially those who have served more than 85% of the maximum sentence length, the parole minimum in NC. Dr. Stefano Bertozzi, a public health expert at UC—Berkeley, articulated this need well:
“There’s a very strong inverse correlation between risk to society and risk to the individual from severe disease. So, people who either are very elderly or have serious coexisting medical conditions are unlikely to be a danger to society. Unfortunately, the easiest thing is to release prisoners who have a short time left on a sentence. But we should be looking instead at the question of whether a person is a danger to society and using a more holistic view of who should be released.”
North Carolina should look to states like Oregon, Rhode Island, and Hawaii, where officials assess whether continued incarceration actually furthers the purposes of punishment when deciding on early release cases. By allowing for release when continued captivity would be “cruel or inhumane” (OR) or would be unlikely to contribute to an inmate’s rehabilitation (HI), these states’ policies ditch the belabored and bureaucratic maze of eligibility restrictions, clearing away some of the procedural brush that inhibits efficiency.
For more of a structured approach to comprehensive ELC inmate release, NC should consider the Prison Policy Initiative’s framework that presents four compelling categories of inmates that prisons could prioritize: inmates nearing the end of their sentence, medically fragile older inmates & pregnant women, inmates held on low bail amounts, and inmates held for offenses that would not result in detention if arrested contemporarily.
However, the interest in pursuing fairly aggressive prison release during the pandemic must be tempered by some of the difficulties and consequences that follow when such a program is implemented in reality. In some states, even where the number of early releases is already low, prisons are experiencing a phenomenon known as “jail churn”, with inmates being cyclically let out and re-arrested. In New York, after 2,500 prisoners were released early from Rikers Island jail due to COVID, at least 450 were re-arrested. Despite this frustrating duplicity, it is the reality that our correctional system lacks the infrastructure to support rapid reabsorption of inmates into society. County probation officers in California have discussed similar infrastructural worries, stating that prisoners who are transient, mentally ill, struggling with substance abuse, or overall lacking social support will struggle if they are rapidly released without the appropriate services on the “outside” to assist in the transition.
It must also be remembered that even despite the pandemic, there are rightfully some members of society – often, victims’ families – who aren’t ready to see a perpetrator be released early. Victims’ loved ones have spoken out about their reservations on early release, clinging to the notion that the inmate’s confinement is the only compensation that can be given for their suffering.
These are all important considerations that speak to our country’s obligation to rehabilitate other sectors of our correctional system. Above all, there needs to be a balance between justice and benefit for the larger population. However, the current threat that the pandemic poses to health – both inside and outside the prison – must take priority. And by cherry-picking inmates who meet highly selective criteria, North Carolina’s ELC law is too self-restrictive to provide any social or public health benefit. While it is true that release policies must be delicately balanced against other competing social interests, the pandemic has provided an opportunity for North Carolina to experiment with activation of the ELC statute, and North Carolina is waffling. In its effort to minimize public backlash, its policy choices have become “a disingenuous and potentially deadly game”. Instead, state policy makers should be using this time to devise and test protocols that will contribute to the robust and equitable usage of ELC in the long-term.
Photo credit: Joe Piette (“Hundreds Join Philly Car Caravan to Demand Decarceration” by joepiette2 is licensed with CC BY-NC-SA 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-nc-sa/2.0/)
Covid-19’s Impact on People in Prison, Equal Justice Initiative (Aug. 21, 2020), https://eji.org/news/covid-19s-impact-on-people-in-prison/
 Brendan Saloner et al., COVID-19 Cases and Deaths in Federal and State Prisons, J. Am. Med. Ass’n. (July 8, 2020), https://jamanetwork.com/journals/jama/fullarticle/2768249.
 Equal Justice Initiative, supra note 1.
 Alison O Jordan & Melvin H. Wilson, Addressing COVID-19 and Correctional Facilities: A Social Work Imperative, National Ass’n. of Social Workers, (June 2020), https://www.socialworkers.org/LinkClick.aspx?fileticket=o6zZ1n0yE0k%3D&portalid=0.
 Tia Powell et al., Older Adults and Covid‐19: The Most Vulnerable, the Hardest Hit, 50 The Hastings Ctr. Rep., no. 3, June 29, 2020, https://doi-org.go.libproxy.wakehealth.edu/10.1002/hast.1136.
 Why prisoners are at higher risk for the coronavirus: 5 questions answered, The Conversation (April 17, 2020), https://theconversation.com/why-prisoners-are-at-higher-risk-for-the-coronavirus-5-questions-answered-136111.
 Kelsey Kauffman, Why Jails Are Key To ‘Flattening the Curve’ of Coronavirus, The Appeal (Mar. 13, 2020), https://theappeal.org/jails-coronavirus-covid-19-pandemic-flattening-curve/.
 Prisons Info on COVID-19, N.C. Dep’t of Pub. Safety (last visited Oct. 2, 2020), https://www.ncdps.gov/our-organization/adult-correction/prisons/prisons-info-covid-19.
 DPS Research and Planning: Automated System Query, https://webapps.doc.state.nc.us/apps/asqExt/ASQ.
 Jamie Markham, Early Medical Release, North Carolina Criminal Law: A UNC School of Government Blog (Jan. 8, 2014, 12:09 PM), https://nccriminallaw.sog.unc.edu/early-medical-release/
 N.C. Gen. Stat. § 15A-1369 (2020).
 Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), U.S. Dep’t of Just. (Jan. 17, 2019), https://www.bop.gov/policy/progstat/5050_050_EN.pdf
 Prisons Info on COVID-19, supra note 8.
 North Carolina, FAMM Compassionate Release (June 2018), https://famm.org/wp-content/uploads/North-Carolina_Final.pdf.
 N.C. Gen. Stat. § 148-4(2) (2020).
 Jordan Wilkie, Judge: Prison conditions during pandemic likely unconstitutional,Carolina Pub. Press (June 9, 2020), https://carolinapublicpress.org/30619/judge-prison-conditions-during-pandemic-likely-unconstitutional/.
 Petition for Writ of Mandamus, NC NAACP v Cooper, 20 CVS 500110 (Wake Cty. Superior Ct. Apr. 8, 2020). https://www.acluofnorthcarolina.org/sites/default/files/nc_naacp_v._cooper_covid-19_pwm_exs_tofile.pdf
 Prisons Info on COVID-19, supra note 8.
 Ben Finholt, Data on NC DPS and COVID, Duke L.: CSJ Blog (June 18, 2020), https://sites.law.duke.edu/csj-blog/2020/06/18/data-on-nc-dps-and-covid/.
 Emily Widra & Peter Wagner, Jails and prisons have reduced their populations in the face of the pandemic, but not enough to save lives, Prison Policy Initiative (Aug. 5, 2020), https://www.prisonpolicy.org/blog/2020/08/05/jails-vs-prisons-update-2/.
 Community Members Demand Cooper Release Incarcerated People at Risk of COVID-19, Emancipate NC (Sept. 24, 2020), https://emancipatenc.org/community-members-demand-cooper-release-incarcerated-people-at-risk-of-covid-19/.
 Finholt, supra note 25.
 Rebecca Silber et al., Aging Out: Using Compassionate Release to Address the Growth of Aging and Infirm Prison Populations, Vera Inst. of Just. (December 2017), https://www.prisonpolicy.org/scans/vera/Using-Compassionate-Release-to-Address-the-Growth-of-Aging-and-Infirm-Prison-Populations-Full-Report.pdf.
 Parole Process, N.C. Dep’t of Pub Safety (last visited Oct 2, 2020), https://www.ncdps.gov/about-dps/boards-commissions/post-release-supervision-parole-commission/parole-process.
 Stacy Weiner, Prison should not be a COVID-19 death sentence, AAMCNews (Aug. 27, 2020), https://www.aamc.org/news-insights/prison-should-not-be-covid-19-death-sentence.
 Mary Price, Everywhere and Nowhere: Compassionate Release in the States, FAMM (June 2018), https://famm.org/wp-content/uploads/Exec-Summary-Report.pdf.
 Emily Widra & Peter Wagner, Five ways the criminal justice system could slow the pandemic, Prison Policy Initiative (Mar. 27, 2020), https://www.prisonpolicy.org/blog/2020/03/27/slowpandemic/.
 Responses to the COVID-19 pandemic, Prison Policy Initiative (updated Sept. 11, 2020), https://www.prisonpolicy.org/virus/virusresponse.html.
 Robert Lewis, California’s post-prison chaos: Thousands released early, including many with coronavirus, Cal Matters (updated Aug. 18, 2020), https://calmatters.org/justice/2020/08/california-prisons-early-release-coronavirus/.
 Barbara Bradley Hagerty, Releasing People From Prison Is Easier Said Than Done, The Atlantic (July 8, 2020), https://www.theatlantic.com/ideas/archive/2020/07/releasing-people-prison/613741/.
 Lyle May, Abolishing parole led to COVID-19 ‘tinderbox’ in NC prisons, Scalawag Mag. (May 18, 2020), https://scalawagmagazine.org/2020/05/covid-19-death-row-nc/.
 Andreea Matei, States Could Save Lives by Expanding Compassionate Release during COVID-19 and Beyond, Urban Institute: Urban Wire (June 24, 2020), https://www.urban.org/urban-wire/states-could-save-lives-expanding-compassionate-release-during-covid-19-and-beyond.