By Reggie Shuford
For weeks, Pennsylvania Gov. Tom Wolf has deftly handled the many aspects of the coronavirus pandemic that have confronted him and members of his administration. Led by state Secretary of Health Dr. Rachel Levine, the administration has calmly and persuasively convinced Pennsylvanians to stay home to deter the spread of the coronavirus and the disease COVID-19.
But there is one area within his responsibilities in which the governor has failed – Pennsylvania’s state prisons.
By definition, people who are incarcerated are limited in their ability to practice social distancing. While arrangements vary from institution to institution, it is typical in the commonwealth’s prisons for people to be housed two people per cell; women who are incarcerated are housed 4-6 people per room.
People who are imprisoned eat meals in close proximity to each other and often are employed in jobs that keep the prison running, such as food preparation and custodial duties. They share bathroom facilities and have limited access to personal hygiene items, including even a simple bar of soap. Hand sanitizer is forbidden because prison authorities consider it “contraband.”
People who are incarcerated can’t get away from each other. And coronavirus does not see walls or razor wire. Staff, attorneys, and medical officials enter and leave a prison daily and can be carrying contagions into the prison and back out into the broader community.
On a good day, prisons are unhealthy environments. When coronavirus enters a prison, it will inevitably spread like wildfire. That’s the lesson in New York City, where 167 people who are incarcerated and 137 staff have tested positive for COVID-19 in the city’s jails.
Wolf was warned of these dangers.
On March 18, the ACLU of Pennsylvania, Abolitionist Law Center, and Amistad Law Project sent a letter to the governor warning him and other state officials of the danger and outlining numerous powers that he and other state agencies have at their disposal to release people from prisons to lower the risk of the disease spreading in state prisons. On March 26, 13 public health and legal experts from some of Pennsylvania’s top universities, including Drexel, Temple, Pitt, and Penn, sent the governor a letter with the same warning.
To date, Wolf has not responded publicly and has left the response to the Department of Corrections, which has only made a vague statement about working with the state parole board to release some people.
But the governor has the ability to release more people from the state prisons right now by using his constitutionally enshrined power of reprieve.
With this mechanism, the governor can temporarily suspend the sentence of anyone serving time for a criminal conviction. He can release people in the state prisons who are at high risk of contracting COVID-19, including the elderly and people with serious medical conditions, and send them home to their families. Individuals released under this reprieve power would finish serving their sentence after the public health emergency has passed.
In 2015, a high-ranking state official called the reprieve provision of the state constitution “entirely unlimited.” This official said, “(T)he Governor’s constitutional power to issue reprieves is not only express and unlimited, but it stands without regulation by any other body or official of government, including the General Assembly and the courts,” and that “the Governor may define the reason for, and duration of, a reprieve as he sees fit.”
The state official who said that was Gov. Tom Wolf.
In a brief submitted by the Office of General Counsel in a case in which district attorneys challenged his moratorium on executions, the governor argued that the power of reprieve is solely his. The state Supreme Court agreed and ruled in his favor.
The governor used that power once. Why would he hesitate to use it again, in a public health crisis that threatens to kill thousands of Pennsylvanians?
Wolf must act now and use the constitutionally granted power of reprieve to temporarily release the most vulnerable people in Pennsylvania’s state prisons. Governor Wolf can’t stop coronavirus from entering a prison. But he can minimize the damage it does.
It is time for him to act.
Read the full text of the Office of General Counsel brief below:
Reggie Shuford is the executive director of the American Civil Liberties Union of Pennsylvania. He writes from Philadelphia.