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Pennsylvania Governor Could Release Hundreds of Prisoners As COVID-19 Spreads

Tom Wolf said Friday he will use his reprieve power, a form of clemency, to reduce the state prison population.

Pennsylvania Governor Tom Wolf on March 2.Photo by Jessica Kourkounis/Getty Images.

Pennsylvania Governor Tom Wolf took executive action on Friday that could release hundreds of people from state prison amid the COVID-19 pandemic. The releases could begin as early as Tuesday, the office said.

Through the Reprieve of Sentence of Incarceration Program, Wolf will offer reprieves, a form of clemency that suspends a criminal sentence, to incarcerated people who meet certain requirements. Those who are considered vulnerable to COVID-19 because of chronic medical conditions like heart disease or diabetes can apply for a reprieve if they are no more than 12 months from reaching their minimum sentence. Individuals who are not considered vulnerable and are no more than nine months from reaching their minimum sentence can also apply.

The Appeal reported at the end of March that the state Office of General Counsel reviewed Wolf’s ability to use his reprieve to release vulnerable people from prison and determined he “could probably do it” but noted that it was not the “preference.”  

People convicted of certain offenses like crimes of violence, personal injury crimes, and drug trafficking are excluded from applying for a reprieve under the new program. Anyone who has been convicted of a disqualifying offense within the past 10 years is also excluded from applying even if the person is currently incarcerated for a crime that would make them eligible for release.

All people serving life without the possibility of parole are excluded from applying for a reprieve, including the more than 700 people who are over the age of 65. However, the program does allow anyone who is incarcerated and has received a positive recommendation for release from the state Board of Probation and Parole to apply for a reprieve, regardless of the offense for which they were convicted.

According to a news release from Wolf’s office, somewhere between 1,500 and 1,800 incarcerated people, out of the more than 44,000 people in the state’s prisons, are eligible for reprieves under the program. But Wolf said in the news release that ensuring people are connected to healthcare, housing, and food security outside prison will most likely mean fewer people than the total number eligible will be released: Individuals who qualify for a reprieve must be moved to a halfway house or have a proper home plan where they can be put under house arrest. In both cases, they will remain under state supervision. 

“Just as everyone in the community is dealing with COVID-19, the state prison system is doing the same,” Corrections Secretary John Wetzel said in a written statement. “We must reduce our inmate population to be able to manage this virus. Without this temporary program, we are risking the health, and potentially lives, of employees and inmates.”

As of Friday morning, 11 incarcerated people and 18 staff members had tested positive for COVID-19, although the spread of the virus in the prison system may be greater than what has been reported, according to research by journalist Adryan Corcione.

Wolf’s reprieve program closely mirrors legislation that his administration drafted and provided to the state legislature late last week. However, the program differs in some respects.

Under the proposed bill, district attorneys and judges were able to block any release. The reprieve program does not provide this direct power but states that before each release, the Department of Corrections will “confer with the Court, the Office of Attorney General, and District Attorney’s Office” in the county where the person was sentenced. However, anyone “who poses an identifiable risk to public safety” is excluded from applying, though the proclamation does not provide criteria for how this will be determined.

The program also removes a requirement in the proposed legislation that a person seeking release test negative for COVID-19. Currently, testing through the state Department of Health is restricted to people who are showing symptoms of the virus, potentially preventing some healthy or asymptomatic people from being released simply because they did not qualify to get tested.

Republicans in the state House warned Wolf late last month against acting unilaterally, saying that they felt people in prison may be safer than those outside. However, the Republican-controlled legislature failed to act on any furlough program and the Senate is not scheduled to reconvene until May, prompting Wolf to act alone.

Traditionally, reprieves have been used to stay executions in death penalty cases. But Wolf’s program, which expires once the state terminates its COVID-19 emergency, sets a precedent that could have long-lasting effects for clemency in the state, experts say. 

“This does set a precedent in Pennsylvania for more expansive use of clemency powers in a situation that obviously calls for it,” Ben Notterman, a research fellow at New York University’s Center on the Administration of Criminal Law, told The Appeal. “Releasing people in Pennsylvania, he said, won’t affect public safety and should prompt us to “reconsider our society’s extraordinary commitment to incarceration, which is rivaled nowhere in the modern world.”

Notterman has compiled a list of reprieve powers available to governors in all states and has been leading efforts nationwide to push state leaders to reduce prison populations as the COVID-19 pandemic spreads.

“The present circumstances demonstrate why the framers of state constitutions vested the executive branch with such power,” he said. “Perhaps other states will take a cue from Pennsylvania, where legislative inaction required the executive branch to fill a critical leadership void.”

Public health advocates have been calling on Wolf for weeks to use his reprieve power during the COVID-19 crisis. “This is an excellent first step by Governor Wolf. It must not be the last step,” Reggie Shuford, executive director of the ACLU of Pennsylvania, said in a written statement. “Extreme outbreaks of COVID-19 in jails in New York and Illinois show the danger that awaits Pennsylvania if public officials do not act swiftly.”