New report challenges governors to use clemency powers to fight the COVID-19 pandemic

by Rebecca Buckwalter-Poza, Justice Collaborative Institute 

As COVID-19 outbreaks continue to explode in prisons and jails across the United States, a new report published on Tuesday by The Justice Collaborative Institute in collaboration with Data for Progress challenges governors to make full use of their executive power to release larger numbers of people from detention in order to create less crowded, less dangerous conditions in the face of the pandemic. 

Although there has been some action to lower jail local jail populations, governors have so far largely failed to use their clemency powers to address the crisis of COVID-19 in state prisons, the report says, a decision that threatens incarcerated people, prison staffers, and the communities surrounding prison and jail facilities.

At their current population levels, many state prisons are unable to comply with “social distancing” or the hygiene standards necessary to slow the spread of COVID-19. This failure presents a particularly acute danger behind bars, as a higher percentage of people held in state prisons are over the age of 55 or suffering from chronic health conditions that make them more susceptible to serious illness or death from the virus.

“Our political leaders have ample tools at their disposal to avoid humanitarian disaster in prisons and jails, but they must act now.”

Virtually every state constitution authorizes the governor or a board of pardons to grant clemency to incarcerated people, according to the report. Governors can do this through:

  • commutation – shortening a custodial sentence, usually to time served;
  • reprieve – temporarily suspending a sentence and allowing recipients to resume their sentences at a later date;
  • furlough – allowing a person to serve a portion of his or her sentence outside a prison or jail; 
  • compassionate release – a set of mechanisms for releasing individuals when illness, age, health consideration or other extreme family circumstances outweigh continued imprisonment.

“Our political leaders have ample tools at their disposal to avoid humanitarian disaster in prisons and jails, but they must act now,” said Ben Notterman, a fellow at the NYU School of Law Center on the Administration of Criminal Law and a co-author of the report.

Published along with the report is a full state-by-state breakdown of gubernatorial clemency powers across the nation, which outlines the scope of each governor’s power and additional limitations or regulations they may be subjected to.

The full report is available here. The appendix of state clemency policies can be accessed here.

The Justice Collaborative Institute is a coalition of justice reform scholars from across the nation focused on providing an academic perspective to conversations and work surrounding mass incarceration and related issues. Rebecca Buckwalter-Poza can be reached at rebecca.buckwalter.poza@thejusticecollaborative.com