NJ’s COVID-19 Release Program for Prisoners Is Slammed for Major Failings

COLLEEN O'DEA | MAY 26, 2020

NJ Spotlight

Prison wall


Attorneys working to free vulnerable prisoners under New Jersey’s COVID-19 inmate release program are slamming it for being overly complex and secretive, and in court papers have called the process “too little, too late.”

The disease caused by the novel coronavirus has already killed 43 inmates in the state prison system, making New Jersey the state with the highest inmate death rate in the nation, according to a review by the Marshall Project. The number testing positive for COVID-19 was 970 as of last Friday — and is continuing to climb as the Department of Corrections (DOC) ramps up its testing of inmates.

Meanwhile, it is virtually impossible to know exactly how many prisoners have been temporarily released.

Matt Platkin, chief counsel to Gov. Phil Murphy said on May 15 that 368 prisoners had either been paroled or furloughed as a result of an executive order Murphy signed April 10. A Department of Corrections (DOC) spokeswoman put the number on temporary furlough at 146 last Thursday, noting that 15 of those already had been returned to custody for violating their release terms, which include an ankle monitor and twice daily check-ins that, for some, begin as early as 5 a.m. DOC referred questions about inmates paroled under the order to the State Parole Board, which did not answer that question.

“We have no idea, because they have made a decision to not be transparent about release,” said Alexander Shalom, senior supervising attorney with ACLU-NJ, who has asked the state Supreme Court to act to release more vulnerable individuals from the prison system. Shalom noted that the DOC has a web page detailing its pandemic-related actions and the numbers of inmates and staff who have fallen ill or died. “Notably absent from that page is any information about the number of people who have been released,” he said.

Supreme Court could soon weigh in

The Supreme Court could rule this week on the proposal by ACLU-NJ and the state public defender to expand the governor’s order on the release of prisoners and simplify the process, as the court did in March to secure the release of close to 700 from county jails.

Action by the court  cannot come soon enough for inmates with medical conditions that make them more susceptible to the virus who are awaiting or have been denied release, because “people in New Jersey prisons are dying at alarming and growing rates,” ACLU-NJ and defenders office argued in their latest court filing on May 20.

Those lucky enough to have been furloughed are also hoping, as the numbers climb for prisoners testing positive for COVID-19, that furloughs will be extended; currently, they last only 30 days.

“I’m praying they extend it because, as you can see, it is still a very bad situation in there,” said one man who asked that his name be withheld because he fears possible retribution when he returns to custody. He said that unless his furlough is extended, he must report back to prison by noon Saturday. “I spoke with an attorney about possibly getting early parole, but it’s still a long shot. I have eight months left on my sentence. I just pray it doesn’t turn into a life sentence.”

And the families and friends of those who already have died in prison are angry over what they believe to be delays or roadblocks meant to keep more prisoners behind the walls.

“My son was my first love and to have my son not come home anymore and not be able to see my son anymore and hear my son’s laughter and get a hug from my son has just destroyed my entire life,” said Bernice Ferguson of 39-year-old Rory Price, who died May 1, less than two weeks before she said he was to be released. “They stole my baby’s life … Now I get to see my son no more. I have to go to a gravesite to visit my son and talk to my son.”

Murphy, officials ‘should be held accountable’

Ferguson was one of several people who spoke during an online remembrance organized two weeks ago by the organization Salvation and Social Justice. She criticized Murphy and state officials for not releasing inmates sooner and said they “should be held accountable for their decisions.”

As the thousands who have died in other communal living settings, such as the state’s long-term care facilities, psychiatric hospitals and developmental centers for the disabled are mourned, prisoner advocates say that no one deserves to die from a virus they could not avoid getting when they did not have masks, adequate cleaning supplies or the ability to distance themselves from others who were sick.

“No social distancing, no CDC-approved hand sanitizer or disinfectants” until the second week of April at one Newark halfway house, said one woman whose loved one is a resident there. By then it was “too late,” she said. She said she was not allowed to send sanitizer or disinfectants and it wasn’t until about April 10 that staff started checking everyone’s temperature. “Obviously the time to prevent or slow the spread was the end of March.”

“The Murphy administration’s bureaucratic excuses and delays have already functioned as a death penalty for close to 50 people in prison,” said the Rev. Alonzo Perry Sr. and the Rev. Willard WC Ashley, leaders of New Jersey Together, in a joint statement May 18.

“The governor can and must act now to release those most at risk and then fire those responsible for the delays in testing and releases. Governor Murphy must also provide full transparency about procedures, infection rates, and how those who test positive are being treated … These mistakes have been both deadly and inexcusable, impacting people in prison, staff, and their families. The lack of leadership must end today.”

Asked about the statement, Murphy said at a May 18 press briefing only that he was “not aware of the request to fire anybody.”

Murphy’s six-week-old executive order requires corrections and parole officials to make relatively quick decisions on releasing to “emergency medical home confinement” inmates who fall into one of four categories — those with underlying medical conditions and age 60 or older, those with medical conditions or at least age 60, those denied parole within the last year and those within 90 days of release.

Some 3,050 inmates were deemed eligible for release under Murphy’s order, according to a state filing with the Supreme Court last week and as many as 673 have been approved for furlough or parole, although that number may include “some duplication.”

Shalom said that filing helped put into some context the release numbers Platkin had quoted on May 15, surprising attorneys and advocates alike, although the state filing only characterized the 673 as “approved” for release, rather than actually released.

Numbers don’t match

Until May 15, attorneys thought about 100 individuals had been furloughed and did not know that the parole board had been approving COVID-related paroles. That day, at the governor’s daily press briefing, Platkin said in answer to a reporter’s question that the board had paroled 243 inmates under the terms of Murphy’s order and an additional 273 from halfway houses to help mitigate the spread of the virus. Platkin put the total number furloughed or released at 641.

Yet some residents and former residents of halfway houses said they have not seen any releases beyond what might normally occur and Shalom said the number paroled likely includes individuals who would have been approved anyway.

The numbers quoted by DOC on several days over the last few weeks usually have not matched the number listed on the DOC website on home confinement. For instance, last Thursday, when DOC told NJ Spotlight that 146 individuals had been furloughed to date, with 15 of those already back in state custody, the department’s inmate locator web page listed only 110 prisoners on home confinement. Liz Velez, a DOC spokeswoman, said the difference is likely due to individuals whose release date occurred while they were on home confinement, so their status changed to paroled or released. She referred questions about those paroled to the State Parole Board, which did not provide a number.

By contrast, at least 15 states, including neighboring Pennsylvania, provide daily updates of either the numbers released or a list of names of those let out, according to Prison Policy Initiative.

Beyond not allowing for a full grasp of the numbers eligible for release, approved and actually let out, the process Murphy put in place is to be faulted, Shalom said, for not commuting outright some inmates’ sentences or ordering the early release of those nearing the end of their incarceration, as some other governors have done.

The process: lists, reviews, notifications, decisions

The process in New Jersey began with a review of all nonviolent offenders’ backgrounds to create four lists of those eligible based on the specific criteria related to underlying medical conditions, age, etc. Then, according to the order, the lists were to be sent simultaneously to prosecutors, the parole board and a new emergency medical review committee co-chaired by one representative each of the DOC and parole board. Prosecutors were to notify victims and recommend whether to release or retain those eligible. The parole board was to decide whether to parole or release individuals. The review committee was to, within seven days, consider all the information and recommend whom to furlough to temporary home confinement. DOC Commissioner Marcus Hicks was then to make the final decision on furloughs within three days.

In addition, the text of the order appears to require Hicks to decide whom to furlough within 10 days of the completion of the four lists. The state’s most recent court filing seems to indicate those lists have been completed and previous DOC statements indicate some of the lists were finished weeks ago.

Velez said officials are following the requirements of the order: “The team has reviewed and processed the files in the requisite time frame.”

ACLU-NJ and the public defender’s office disagree. They first filed a motion to get prisoners released on April 8. Two days later, Murphy issued his executive order, which put that legal request on hold. After a month had passed without any indication of a meaningful number of releases, Chief Justice Stuart Rabner signed an order asking for legal arguments over whether he should endorse the advocates’ proposal for a broader release, including of nonviolent offenders within a year of finishing a sentence.

The state responded by saying the DOC and parole board have taken “extraordinary and expeditious steps to identify and evaluate thousands of current inmates for placement into home confinement or parole.” It stated that DOC has reviewed nearly 98% of all those eligible and that the parole board was continuing to review individuals “as quickly as feasible.” It contended that judicial action is “unnecessary and unwarranted.”

Failure to achieve ‘desired results’

In their May 20 brief, the advocates disagreed, writing: “The mechanism chosen by the Governor created a cumbersome process that has failed to achieve the desired results of releasing the most vulnerable people and alleviating crowding to allow for better social distancing for those who remain.”

Further, according to Shalom, individuals denied release are not being told the reason why nor given a chance to fix a problem that may be keeping them incarcerated — for instance, if the DOC objects to a prospective furlough location, an individual doesn’t get to propose a different location.

“Now you’ve got someone sitting in prison who should be able to leave, but because there’s no due process attached to the system, they sit in prison with an elevated likelihood of getting sick or dying,” he said.

Christopher Biello, a nonviolent offender who has been living in a halfway house for more than a year, said he thinks county prosecutors are using the system to essentially reargue their cases against offenders and keeping them from release, regardless of underlying medical conditions that put them at risk.

Biello said he has asthma, a heart condition and is missing part of his lung, all of which make him more vulnerable to getting seriously ill if he contracts the virus. About 40 men live in the five-bedroom halfway house he inhabits, sharing common rooms, bathrooms and recreation areas. He sought a judge’s order for temporary release, but that was adjourned to let the furlough process play out. He has a new hearing slated for Thursday.

“There are many who are in fear of serious injury or death, those who should be given the chance to escape the wrath of this disease, and those who should be afforded the opportunity at continued life and not relegated to succumb to a disease,” Biello said.

He knows that the furlough is temporary and that, if granted one, he would have to return to the halfway house to complete his sentence when the pandemic is over. He points out that he typically has more freedom there on a daily basis — allowed to go to work, to the barber, to church and home for weekend furloughs — than he would with an ankle monitor on home confinement. Biello will be eligible for parole next January.

Halfway house resident ‘trapped behind the wall’

“The prosecutor acts as though it is a get out of jail free card. It is not,” he wrote in an email. “Why would I (we) want to be confined to home with NO movement whatsoever when I (we) am presently afforded the ability to move about when authorized at the halfway house you might ask? To ensure we will not become deathly ill or die. Plain and simple. Sadly there are many others just like me, and those trapped behind the wall that have been serving their respective time, attempting to better their lives, who outside of objections made by the prosecuting agency would be otherwise eligible for release.”

In their own brief to the Supreme Court, the County Prosecutors Association of New Jersey called the system set up by the executive order a “practical process” that takes into account “public safety concerns related to the early release of lawfully-sentenced prisoners.” The prosecutors further contended that they did not object to releases as a matter of course and that when they did oppose releases, “those objections were within the discretion of the agency who deemed the objections warranted given the circumstances.”

It took more than two weeks from the time of the governor’s April 10 executive order for New Jersey corrections officials to begin furloughing vulnerable prisoners. A month later, the Marshall Project’s prison COVID tracker shows New Jersey has suffered the second largest number of deaths in the country, behind Ohio, which has a far larger prison population. But the rate of prisoners who have died of the virus in New Jersey — 238 per 100,000 — is unquestionably the largest; Michigan is a distant second with a death rate of 157. New York, which is the only state in the U.S. with more total cases of COVID-19 than New Jersey, has had just 16 deaths among prisoners, or 37 per 100,000.

Of 43 individuals listed on the DOC website as having died since the first COVID-19 case was identified in the state March 4, eight appear to have been nonviolent offenders who may have been eligible for consideration for furlough or parole. One died before the governor issued the executive order. While there is no information available about their medical conditions, all but one of the other seven appear to have had at least one factor that would have put them on one of the priority lists for consideration — either being over age 60, overweight or obese. or within 90 days of the end of the minimum sentence imposed.

It is believed that at least three corrections staff have died. While Murphy honored the first officer to die during a briefing last month, DOC officials have since refused to disclose the number of staff deaths, even as other state departments provide the numbers of staff who died at psychiatric facilities, developmental centers and nursing homes.

Murphy said at last Friday’s briefing that his office would follow up with an answer to this reporter’s question on deaths of corrections staff but that response was not provided. Judith Persichilli, state health commissioner, said last Wednesday that more than a quarter of corrections staffers had tested positive for the virus.

Sen. Michael Testa: ‘Unnecessary risk’

Sen. Michael Testa (R-Cumberland) last week called for DOC Commissioner Marcus Hicks to step down or be fired because of the problems the prison system has had in dealing with the virus.

“The commissioner has lost the confidence of corrections officers across the state, and his ineffective leadership during the pandemic created unnecessary risk to the health and lives of inmates, guards and other employees, as well as the families they go home to,” Testa said. “The virus is firmly entrenched in our facilities … This all could have been prevented with more aggressive, proactive leadership.”

Velez, the DOC spokeswoman, has defended the department’s actions to try to stem the spread of the virus: ending in-person visitations, curbing inmate socialization, requiring most meals to be eaten in individuals’ cells and ultimately requiring inmates to wear masks.

But ACLU-NJ and the state public defender say that has not been enough. They say social distancing is the best way to prevent the virus from spreading and that remains nearly impossible to achieve in the prisons now.

“We are facing, in no uncertain terms, a crisis of unparalleled proportions,” their May 20 brief contends.

The Legislature is likely to look into what happened at the prisons at some point. A state Senate committee had planned a hearing on the deaths that have occurred there, but that hearing has been canceled. Instead, the Democratic and Republican leaders of the Senate announced Saturday the creation of a bipartisan “Review and Recovery Committee” to investigate COVID- 19 fatalities in the state’s long-term care facilities and prisons, the breakdown of the unemployment system and other consequences of the pandemic.

“This is the biggest public health crisis in more than a century with consequences on the lives and livelihoods of so many sectors of society,” said Senate President Steve Sweeney (D-Gloucester). “It has created crises for a range of communities and exposed social and governmental failures that need to be addressed. This panel will work to rectify immediate problems and to make systemic reforms to prevent them from happening again.”

Other advocates are taking additional action to keep up the pressure on state officials to release more individuals, as well as to remember those who died in prison. Salvation and Social Justice has planned a funeral procession for the dead on Thursday at the Trenton War Memorial between 11 a.m. and 1 p.m. Murphy usually holds his daily press briefing at the memorial at 1 p.m.

Darrell Parks died on April 24

One of those who will be remembered is Darrell Parks. He was 62 and had a compromised immune system when he died on April 24, two weeks after the executive order was issued but just before any furloughs were announced, said his sister Trina Parks recently.

“I just can’t understand why, when the CDC warned that this pandemic would run through the prison and the most vulnerable needed to be safeguarded, why no one thought to safeguard these individuals,” said Parks. She called Murphy and the state prison system her brother’s “executioners” and called on the governor to “admit your guilt and wrongdoing in the delay of safeguarding those that were vulnerable.”

The Rev. Charles Boyer, founding director at Salvation and Social Justice and pastor of the Bethel AME Church in Woodbury, said the state’s “abject failure” to deal appropriately with COVID-19 allowed correctional facilities “to be converted into incubators of this deadly virus and death camps for those inside.”

He said Murphy needs to do more.

“It’s not too late for redemption, it’s not too late for the governor to take lifesaving action,” Boyer said, “but first, the governor has to recognize the irreparable harm that this has done.”

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