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3 Considerations for Decarceration
Pages 45-62

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From page 45...
... At the same time, there are cases of incarceration where the immediate impact on public safety may be small to negligible -- such as those incarcerated due to failure to pay small amounts of bail, due to a technical or parole revocation, or imprisonment of the elderly or medically compromised -- even as continued incarceration exposes the incarcerated person to a heightened risk of COVID-19–related sickness and death. In order to reconcile public safety and public health considerations, in this chapter the committee argues that, in light of the current public health crisis, a more inclusive assessment of the impacts of incarceration on society is needed.
From page 46...
... This is also true in some instances when individuals are released from jail either due to time served or a pretrial release. Overall, there is great heterogeneity among incarcerated people and their likelihood of future serious offending, and there have been recent reductions in correctional populations in the United States that have not caused a measurable increase in serious violent crime (see below and Appendix A)
From page 47...
... Among the static factors, individuals released from their first term of incarceration have lower recidivism rates, as do individuals with less lengthy criminal histories and individuals who are older. The content of one's criminal history -- the current conviction offense as well as what one has been convicted of in the past -- also has some predictive power.
From page 48...
... Taken together, evidence for the overuse of pretrial incarceration for low-risk defendants and extra-legal disparities by race and economic status suggest that reductions in the jail population are possible with little negative effect on crime. An issue particularly relevant to criteria for decarceration during COVID-19 is that individuals who are at high-risk for COVID-related complications and mortality due to advanced age and comorbid health conditions tend to be serving long prison sentences for a serious violent offense.
From page 49...
... Interestingly, the authors find that people convicted of violent offenses have lower overall recidivism rates for all age groups compared with individuals convicted of nonviolent offenses, though the recidivism rates are particularly lower for people 55 and over. Research also indicates that the prison population in some states can be drawn down quickly by limiting returns to custody for technical parole violations.
From page 50...
... Jails contributed nearly two-thirds to the total decline in incarceration, and jail populations fell by more than 20 percent. State prisons also registered population decline, but of less than 5 percent3 (see Table 3-1)
From page 51...
... Despite the constraints of current law and criminal justice policy, prisons and jails across the country experienced population declines as the pandemic spread. The COVID-19 crisis in correctional facilities was acute, but these population reductions likely improved the health environments inside penal facilities.
From page 52...
... Information on large jurisdictions not included in the database also shows similar population reductions at jails in New York City; Cook County, Illinois; and Los Angeles County. The JDI database offers few clues as to why the jail population fell so much in such a short period, but information from the much smaller sample of the Safety and Justice Challenge (SJC)
From page 53...
... Instead, under the stay-at-home guidance widely adopted across the counties, both criminal activity and arrests by police slowed significantly, and the caseloads in the courts were greatly reduced. The SJC sites in the study adopted measures in the areas of policing, case processing, pretrial release, and probation that aimed to reduce COVID-19 exposure in the initial stages of the criminal justice system.
From page 54...
... Prosecutors could also decide to decline to seek pretrial detention in all but the most serious cases. Law enforcement officers might thus be deterred from arresting people they might otherwise have brought into jail.
From page 55...
... or by the municipal agencies that act in concert with ICE. 8 In Washington County, Arkansas, local jail officials pursued collaborative strategies to reduce their jail populations, working with local prosecutors and circuit judges to release approximately 150 people on home monitoring and seeking (and receiving)
From page 56...
... Many governors (or, in the case of the federal system, the President) can use their pardon or commutation power to reduce judicially imposed sentences.9 Parole boards, often acting in concert with departments of corrections, can grant parole or issue medical furloughs.10 Courts can order releases as remediation for constitutional violations, and in the federal system, can entertain and grant petitions for compassionate release brought by people in the custody of the Federal Bureau of Prisons (BOP)
From page 57...
... , "on March 26, Attorney General William Barr issued a memo urging federal prisons to transfer older and medically vulnerable prisoners to home confinement -- but it was limited to those with nonviolent offenses who were deemed low-risk." The authors note that by April 3, 2020, only 552 incarcerated people had been released, out of approximately 175,000 people living in BOP facilities. A subsequent April 2020 memo made the requirements more flexible and more people were released.
From page 58...
... In the vast majority of states, parole boards make compassionate release decisions, but in the federal system these decisions are made by federal courts. Prior to passage of the First Step Act of 2018, only the BOP director could petition the court to reduce a prison sentence for reasons of age, medical condition, family circumstance, or some other "extraordinary or compelling reason,"12 as long as the director had determined that the individual seeking release was "not a danger to the safety of any other person or to the community." While the First Step Act did not change the factors a court considers, it granted those seeking release the right to bring the matter to court themselves.
From page 59...
... , which include "the nature and circumstances of the offense and the history… of the defendant," as well as the various purposes of punishment, including the need "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense"; to "afford adequate deterrence to criminal conduct"; and to "protect the public from further crimes of the defendant."14 These factors are the same considerations federal courts use when sentencing people convicted of crimes. Because federal courts are statutorily obliged to consider them when entertaining a compassionate release petition, these factors continue to narrow the possibility of prison release regardless of how much time a person may have already served or however strong the public health grounds for release.
From page 60...
... CONCLUSION Available data on changes in the incarcerated population since the onset to the pandemic show that total prison populations have declined by roughly 5 percent nationwide and total jail populations have declined by roughly 20
From page 61...
... Perhaps the most relevant example is provided by California, where the policy of realignment adopted in response to court order to bring down the state's prison population reduced the number of people in prison rapidly by about one-third, with no measurable effect on violent crime. Second, despite the feasibility of decarceration from the viewpoint of public safety and its desirability from the perspective of public health, there is too little scope in current law for accelerating releases for public health reasons.


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