Lawmakers in Pennsylvania are preparing to introduce a bill early this week that would establish an emergency furlough program to temporarily release some people in state prison in response to the COVID-19 pandemic. But the bill is narrow, some lawmakers say, and leaves far too many people confined and vulnerable to contracting the disease.
The Appeal obtained a copy of the proposed bill, which was drafted by Governor Tom Wolf’s administration with input from the state Office of Victim Advocate and the Pennsylvania District Attorneys Association. It would allow people in prison who are at “higher risk for complications from COVID-19” and a year or less from the expiration of their minimum sentence to request release from prison and placement in a halfway house or an approved residence. Individuals who are not considered to be vulnerable but are less than nine months away from the expiration of their minimum sentence can also request release under the bill. The program would expire 90 days after becoming law.
But there are several broad categories of people who are excluded from the furlough program.
Individuals who are currently in prison for violent crimes, offenses involving a firearm—including illegal possession of a firearm—certain sexual offenses like incest or open lewdness, failure to comply with sexual offense registration requirements, or drug trafficking are all excluded from the furlough program. Anyone convicted of these offenses within the last 10 years is also excluded, even if they’re currently serving a sentence for an offense that would qualify them for release under the program.
The bill also excludes people with an active warrant or detainer for certain misdemeanors or any felony, anyone who has been denied parole, people convicted of crimes while incarcerated, and anyone who received a major disciplinary infraction in the last year.
Wolf did not respond to The Appeal’s request for comment for this story.
Much of the elderly prison population, those considered more at-risk of contracting COVID-19, would not qualify for release either. Nearly 40 percent of people 65 years old or older in Pennsylvania prisons are serving a life without the possibility of parole sentence and cannot participate in the furlough program.
“[This] bill, that from the start excludes easily 75 to 80 percent of people from even applying for release, isn’t going to get you the reductions that allow for social distancing among people held in prisons and proper social distancing between prisoners and correctional officers,” said John Pfaff, a law professor at Fordham University.
Confined quarters makes social distancing in prisons extremely difficult. And reports show that some jails have recently lacked adequate hygiene products like soap or alcohol-based hand sanitizers used to prevent the spread of the virus.
As of Saturday, state prisons as a whole were operating at roughly 95 percent total capacity, nine prisons were at more than 100 percent capacity, and only five were at less than 90 percent capacity.
While there are more than 44,000 people being held in state prisons in Pennsylvania, only about 2,000 people are expected to qualify to apply for release under the bill, said Representative Dan Miller, a Democratic member of the House Judiciary Committee from Pittsburgh. And the number of people who will actually get out is likely less: The bill also bars anyone who does not receive a favorable recommendation from their facility manager and provides district attorneys and judges an opportunity to object to release of any person seeking furlough.
Miller also said he is very troubled by a provision of the bill that allows the court or district attorney five days to object to a person’s furlough request, effectively blocking the request until the objection is resolved.
“I get a little concerned [about] the precedent that we may somehow be establishing that we, at different times, will tell judges that you play second fiddle to the district attorneys,” Miller said.
Miller said he did not receive a copy of the draft legislation until Friday evening and was still determining if he would support it.
Another provision that could prove to be problematic even for people who qualify and do not receive an objection is the requirement that the person must pass a medical screening for COVID-19 before they can be released.
Testing for COVID-19 is limited in Pennsylvania, as is the case in most U.S. states. The state Department of Health currently restricts its tests to people who are showing symptoms of the disease.
According to the state Department of Corrections, testing for people in prison can take up to two weeks to complete. The University of Washington predicts COVID-19 will reach its peak in Pennsylvania around April 18.
The furlough bill is expected to be introduced in the House as an amendment to a bill that is nearing the end of the legislative process. This would allow for a faster than normal passage, as bills typically go through committee and consideration by each chamber of the state legislature.
Representative Christopher Rabb, a Democratic member of the House Judiciary Committee from Philadelphia, said he was reviewing the bill over the weekend but was unhappy that Wolf was relying on the legislature to create a furlough program, rather than use his reprieve power to immediately release people.
As The Appeal reported last week, the Pennsylvania Office of General Counsel has reviewed Wolf’s authority to release vulnerable people in prison using reprieves, a form of clemency that essentially pauses someone’s criminal sentence, and determined the governor “could probably do it.” However, the office noted that it was not “the preference” to use the reprieve power.
“I do not support any legislative measure on this matter given the governor’s clear authority and responsibility to act more swiftly to expedite the appropriate release of medically vulnerable men and women from state prison through his power to [issue] reprieves,” Rabb told The Appeal.