When Prisons Locked Down, Prisoners Were Denied Release

When Lorenzo Culbero appeared before the New York parole board in December, nearly 15 years after he was incarcerated and four months before his potential release date, the board deferred its decision for 18 months. Culbero said the board cited his failure to complete a substance use program as one of the reasons for its decision.

The New York Department of Corrections and Community Supervision (DOCCS) shut down programming at Attica Correctional Facility, where Culbero is currently held, between March and June last year to limit the spread of COVID-19. DOCCS didn’t enroll Culbero in his seven and a half month Alcohol and Substance Abuse Treatment program until July, preventing him from finishing the course before his December hearing. Though he finished the required course this year in February—before his initial scheduled release date—the parole board won’t consider his case again until June 2022. 

“I found it completely unfair that [the parole board] would consider my failure to complete a program that they themselves had closed because of the pandemic,” Culbero told The Appeal in an email. The New York State Board of Parole is part of DOCCS.

Prison systems often assign rehabilitative programming as a condition to be given parole and release. Though such programming exists across the country, required courses vary by jurisdiction. In some states, programming must be completed before parole is granted, while in others, parole can be granted but prisoners are not released until they complete assigned courses. 

As prisons implemented lockdowns last year to fight the pandemic, incarcerated people were unable to enroll in programming they needed for release. Activists told The Appeal that governors should have more frequently used their clemency powers to commute sentences during that time.

“What state governments did was kind of just take a back seat and hoped for the best. And people died because of that,” Melvin Medina, a national campaign strategist for the ACLU, told The Appeal. “Across the board, [department of corrections’] responses and governors’ responses in particular showed an incredible amount of cowardice.” 

The New York-based Legal Aid Society told The Appeal that 40 incarcerated people had contacted the organization since the start of the pandemic to express concerns about their inability to complete programs because of COVID-19. Half of those who reached out had lost their conditional release dates, a type of statutory release. 

The New York Department of Corrections and Community Supervision told The Appeal that “if an incarcerated individual fails to complete a program to no fault of their own, it isn’t held against them.” When asked about the information from the Legal Aid Society, a spokesperson said in an email: “There is no way to comment on the 20 individuals you reference without reviewing each case. Conditional Release is not a given, as it is based on a number of variables including completion of programs, as well earned good time which by law is based on good institutional behavior.”

In Michigan, parole was deferred for 232 people in custody as of June 16 because they have not completed programming, according to the state’s prison agency.

Chris Gautz, the state’s Department of Corrections spokesperson, said programming at all facilities except the system’s intake center has now resumed. “We also worked incredibly hard to keep [programming] going for as long as we could and at as many facilities as we could because we want people to be able to parole on time.” 

In May 2020, a Tennessee attorney said that more than 1,000 people had been granted parole in his state but couldn’t complete the required programming needed for release because of pandemic-related shutdowns. 

Between March 2020 and March 2021, 42 Texas prisoners died after being granted parole but before they were released from prison. Eighteen of those people died from COVID-related complications. Many were waiting to complete programming. 

In addition to facility lockdowns, some prisons stopped transferring incarcerated people to prevent the spread of COVID-19. As a result, prisoners were prevented from moving to facilities that offered courses they needed.

In September, Tim Reed was arrested for a parole violation in New York after his ankle monitor died, he says, while he was receiving medical attention in a hospital. (DOCCS alleged Reed tried to flee when parole officers visited his home the next morning, a claim Reed’s wife said was fabricated.) He accepted a 90-day drug treatment program, instead of a longer sentence, hoping to quickly “do my 90 days so I can get back to my family,” he said. 

But after initially being held in a county jail, it wasn’t until December that Reed was transferred to Franklin Correctional Facility, where he was only then able to begin his 90-day program. He spent a total of seven months in three facilities, and said he caught COVID-19 while incarcerated. He was released in March.

When asked for comment, DOCCS said Reed’s transfers between facilities occurred according to protocol.

“I feel they never should have never even sent me upstate for a parole violation during a pandemic in the first place,” Reed told The Appeal. “You could have just let me do my 90 days in a county jail or not even violate me for something so small.”

As COVID-19 ravaged U.S. prisons, health educators, public health experts, and activists called for decarceration, warning that cramped prison conditions would allow the coronavirus to spread quickly. Some governors took action.

By August, Kentucky Governor Andy Beshear had commuted the sentences of nearly 1,900 prisoners. Oregon Governor Kate Brown granted COVID-related commutations to more than 800 incarcerated adults. New Jersey Governor Phil Murphy signed a bill that allowed some prisoners to be released early; more than 2,000 were freed in November. New York Governor Andrew Cuomo directed DOCCS to grant early release during the pandemic, a spokesperson told The Appeal. The directive led to the releases of 3,900 people as of June 2021, largely those convicted of nonviolent offenses who were within 90 days of an approved release date.

But the releases weren’t the wide-scale action that public health experts and activists said were necessary to make facilities safer. Activists and lawyers told The Appeal that governors also should have made greater use of their emergency and executive powers, including clemency and medical release, to free prisoners.

“Every state can and should be accused of deprioritizing the lives and humanity of incarcerated people and for applying absurd bureaucratic obstacles at a time when governors were suspending rules, regulations, and procedures in every other aspect of private and public life for residents not in prisons or jails,” said Medina, the national campaign strategist at the ACLU.

In New York, where clemency petitions surged by 80 percent last year, Cuomo granted 21 pardons and 10 commutations between March 2020 and May 2021, the governor’s office told The Appeal. Though the California Department of Corrections and Rehabilitation moved up the releases of 7,000 people according to a spokesperson, Governor Gavin Newsom, who oversees the second-largest prison population in the U.S., granted 55 commutations last year. Texas Governor Greg Abbott, whose state has the country’s largest prison population, did not offer anyone clemency during the pandemic, a spokesperson told The Appeal.

“The governor could commute everyone’s sentence tomorrow if he wanted to,” Ben Raybin, a criminal defense lawyer in Tennessee, told The Appeal.

Activists’ fears were realized. Infection rates in corrections facilities far surpassed those in the general population. More than 2,700 people incarcerated in state and federal prisons died. 

Wanda Bertram,  a communications strategist for the Prison Policy Initiative, said the pandemic revealed the extent of the labyrinthian processes that prevent people from gaining release.

New York’s DOCCS told The Appeal that the number of people on a waiting list for substance use treatment was 15,685 on April 1, 2020, and had since dropped to 12,475 on April 1, 2021, because of a reduction in the prison system’s overall population. The current waiting list for aggression replacement training was 14,975 people in April 2021. 

Shutting down programming also underscored concerns about offering these programs too late in people’s sentences.

“It’s depressing for people,” said Jennifer Jones, who was released from Michigan’s Women’s Huron Valley Correctional Facility in January after nearly 19 years in prison. Despite the length of her sentence, Jones wasn’t offered a spot in a course she needed to complete until 2019. Though officials would send emails to others in her facility last year saying “we understand things are difficult right now, we’re looking to start in the next week,” Jones said these communications only provided “false hope.”

Maggie Luna, a peer policy fellow at the Texas Criminal Justice Coalition who was incarcerated in Texas before the pandemic, said one of the state’s Department of Criminal Justice programs she took before being released involved “a bunch of stickers and coloring sheets.”

“These people, when they first enter, are more susceptible to being open to change,” Luna said. “The more time you sit in prison, you become a product of your environment. And so we are churning out people who are going in and coming out worse instead of trying to help facilitate change by offering them these classes in the beginning.”

Rachel Alderete, the director of support operations at the Texas Board of Pardons and Paroles, told The Appeal in an email that the board believes these programs have been “instrumental” in helping people re-enter society.

In Michigan, courses are offered to prisoners later in sentences so it stays “fresh in their mind,” according to Gautz, the Department of Corrections spokesperson. A version of the state’s House budget that is under negotiation would require that the corrections department provide programming “at or near the beginning of prisoners’ terms of incarceration.”

However, Andrea Woods, a staff attorney at the ACLU Criminal Law Reform Project, remains disappointed with the actions of politicians and governors as the pandemic ripped through prisons.

“This was a massive call to fundamentally revisit how we incarcerate and it should have been systems bending over backwards to hold parole hearings, release people, make sure that people weren’t being violated for parole infractions,” Woods told The Appeal. “The long and short of it is: There was temporary political will to downsize prison and jail populations during the early days of COVID-19, that political will was far too short-lasting and never went far enough.”