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The rates of COVID-19 cases and deaths in the state’s prison system are too high, and the state needs to decrease its prison population, according to Vinston Rozier Jr., a Wake County Superior Court judge.
Rozier, who has been overseeing a lawsuit challenging the constitutionality of prison conditions during the COVID-19 pandemic, has already ruled that the plaintiffs in the case are likely to succeed. He has also ruled that the state has not followed some of his orders, both to provide information and to act quickly enough to protect the lives of incarcerated people in the face of the pandemic.
In a hearing on Dec. 4, Rozier said he would appoint Thomas Maher, a longtime defense attorney for the indigent and the current head of Duke University’s Wilson Center for Science and Justice, as a court liaison to oversee aspects of DPS’ response to the pandemic. In earlier filings, the court liaison had been called the “special master,” but the two terms describe the same role.
Maher talked with Carolina Public Press by phone on Monday about his new role.
“I do think that there should be always a strong examination of getting people out of prison who can safely serve their sentence or finish their sentence outside the prison,” Maher said.
“There are people who have a good home plan. Have a safe place to go, who don’t pose a risk to the community and are getting close to finishing their sentence. There should be an effort to get them out, particularly people who are at risk themselves.”
Rozier released the official order putting Maher in charge and describing his duties on Friday. While DPS has been better about following his orders recently, Rozier wrote, the state still needs to release people from prison at faster rates.
“This court finds it necessary, based on the pernicious and present dangers associated with the COVID-19 pandemic … to allow for early release of eligible individuals to the greatest and safest extent possible,” Rozier wrote in his order.
Extended limits of confinement
Maher will now oversee the programs DPS is using to decrease its prison population. In a June 16 order, Rozier told the DPS to exercise its authority to release people from prisons in several ways, and most attention has remained on a mechanism called “extended limits of confinement,” or ELC.
Under this program, people are still considered incarcerated in state custody, but they are serving their sentence while at home, not behind prison walls.
To date, 742 people have been released on ELC, according to affidavits filed by DPS, 62 of whom have been returned to prison.
Plaintiffs in this case, represented by a coalition of civil rights groups in North Carolina, have said that number is not high enough to make a significant impact on the state’s prison population.
“It has been clear that the most effective relief that is needed right now is a reduction in the prison population, testing and screening for COVID-19, and then adequate quarantining and medical isolation,” said Leah Kang, an attorney for the American Civil Liberties Union of North Carolina, which is representing the plaintiffs.
Reducing the prison population would protect people from getting COVID-19 in the prisons and make it easier to control the spread of the virus for the remaining people inside, according to the plaintiffs.
Rozier agrees. He first floated the idea of assigning a court liaison in July. Now, Maher will oversee “determining who is available for, and logistically effectuating the process of, early release programs, including but not limited to ELC,” Rozier wrote in his Friday order.
Maher said he recognizes the value of the ELC program under the circumstances.
“That (ELC) seems right now to be the most obvious way of reducing the prison population,” he said.
“You’ve got a prison population now that’s in the neighborhood of 30,000 people; reducing by a couple hundred doesn’t have a dramatic impact on the kind of ability to keep everybody else who remains in prison safe.”
In addition to ELC, the state says it has been offering discretionary credits to people in prisons. With good behavior, they can earn additional time off of their sentences, down to the mandatory minimum that they have to serve.
The state’s prison system population is the lowest it has been in decades, with just under 30,000 people behind bars, according to DPS lawyers, and it credits in part the discretionary credit program, though that’s not the only factor.
At least 1,000 people meant to be in prison were backlogged in county jails as of Friday. Court slowdowns due to the virus mean there’s also a large caseload building up around the state.
Though the state says many people are being released early through this program, neither DPS nor its lawyers in court have identified any single person who was released early under this scheme. They have not been able to say how many people were released or how early they were let out.
By plaintiffs’ calculations, the discretionary credit plan could cut a month off a person’s sentence for every eight months of good behavior.
“Using sentence reduction credits more liberally to shave time off the end of folk’s sentences is probably just good as a matter of public policy and prison administration, but it is not responsive to the emergency that is here now,” Kang said.