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Editor’s note: This article initially posted on Feb. 25, 2021. It was updated on Feb. 26 to include reaction to and analysis of the settlement.
After 11 months of litigation, the North Carolina prison system will fast-track the release of at least 3,500 people over the next six months as part of a legal settlement over prison conditions during the COVID-19 pandemic.
This is one of the largest — and likely the largest and most specific — releases of people from prison as a result of a court action during a pandemic, according to Aaron Littman, the deputy director of the COVID-19 Behind Bars Data Project led by the UCLA law school. In other cases around the country where judges have ruled for the release of significant numbers of people, higher courts overturned the rulings. Since this is a settlement, or agreement between the parties, this will not be overruled.
Wake County Superior Court Judge Vinston Rozier Jr. ruled last June that prison conditions were likely unconstitutional and that the state had to take several measures to protect incarcerated people from COVID-19. Now, he has signed a this settlement that preserves those measures, as well as sets a benchmark for the number of people who need to be released to reduce the prison population.
“The most effective way to protect people in prison from the COVID-19 virus is to reduce the number of people in prison,” said Whitley Carpenter, a lawyer for Forward Justice, one of the civil rights groups representing the plaintiffs in the case.
To date, 47 people in state prisons have died from COVID-19, and another 9,481 have tested positive for the virus, while the disease has hospitalized 310 incarcerated people since the pandemic began, according to records provided by the Department of Public Safety. As of Feb. 15, 3,586 prison staff members tested positive for the virus, and at least nine have died.
Research from around the country has shown that prisons serve as reservoirs and distribution centers for infectious diseases, meaning that communities around prisons tend to have higher rates of COVID-19 than communities without prisons.
This dynamic has also contributed to Black North Carolinians, who are overrepresented both in the prison population and prison staff, being hit especially hard by the pandemic.
Spurred on by the lawsuit, NAACP v. Cooper, originally filed in state court in April 2020, the state prison system has already been releasing people at an increased rate. According to the settlement, “prison population has decreased from 34,437 in February 2020 to 28,581 as of February 2021.”
“If we’re looking at the population reduction overall, we have seen a significant reduction, and then this will continue to add to that, absolutely,” Carpenter said.
The state always had the power
Under the settlement, the state is using three mechanisms for releasing people early.
The court is not granting the state any new authority to release people, meaning that the Extended Limits of Confinement program, what other states call home confinement, along with discretionary credits and a parole and probation program all existed prior to the lawsuit.
DPS had already been using these programs to release people during the pandemic, but the settlement creates specific targets for releases.
“Now there’s a commitment to use that power,” Littman said.
“But that power always existed. Had that been used in a more timely fashion, some of the deaths that we’ve seen could have been avoided.”
Before he ruled that the prison conditions were likely unconstitutional, Rozier questioned his authority to direct the defendants to act. In the end, he did not direct Gov. Roy Cooper to use his powers to release people from prison through sentence commutations or pardons, and lawyers representing Cooper argued Rozier would not have had the authority to do so.
While other governors, such as fellow Democratic governor Andy Beshear of Kentucky, have used their authority to release hundreds of people from prison.
Cooper, who was North Carolina’s attorney general for 16 years before becoming governor in 2017, has not commuted any prison sentences or issued pardons as a way to reduce the prison population during the pandemic.
Picking up the pace
The regular churning of the prison population brings thousands of people behind the walls and releases thousands more each month. The settlement agreement accounts for the “early reentry” of 3,500 people at least 14 days before their projected release date, to be carried out over the next 180 days.
These releases will be in addition to the regularly scheduled releases the prison system will see over the same time frame.
“As far as I know, it’s the largest mass decarceration effort in the country,” said Ben Finolt, the director of the Just Sentencing Project for the NC Prisoner Legal Services, a nonprofit and nonpartisan law firm.
“My hope is that DPS is not simply going to, you know, release everybody who would have been released in the next six months, two weeks before they were going to be released and get to the number that way,” Finholt said.
Based on his reading of the settlement, Finholt thinks DPS will likely release people in a way to reduce the prison population significantly.
In a May filing for the defendants, Nicole Sullivan, the director of reentry, programs and services for DPS, said there was “simply no way to accomplish a mass release of offenders into the community at one time without sacrificing either the services that in our opinion are essential to reentry success, or the interests of public safety.”
Lawyers for the state held this position through the most recent court hearing on Dec. 4. It is not clear what has changed, if anything, in the state’s preparedness to release the additional people as required in this settlement.
Already, North Carolina has the fewest number of people in its prisons since 1995, and with these releases the population could be as low as 25,000 people in six months time.
At that point, the new prison population will create a cap for the number of people who can be incarcerated until the pandemic is over.
If the number of people in prison goes up 10% or more, the prison system will have to quickly release people to prevent further crowding, according to the settlement.
Still, Finholt said, it’s not enough. Given that the prisons are experiencing a years-long staff shortage exacerbated by the pandemic, more people should be let out of prison, according to Finholt.
“Even though it’s a very significant number, it’s not enough … to do everything they could to keep the people in their care and their employees safe,” Finholt said, though he also acknowledged that releasing more people would be a significant political and logistical challenge.
Even with these reductions, North Carolina still incarcerates people at higher rates than most countries in the world, and only in the last couple of years has flipped the trend of steadily increasing rates of incarceration, which began in the late 1970s.
The settlement does not put a long-term cap on the prison population. The temporary cap will last at most for a year, or until either Cooper or the U.S. Department of Health and Human Services lifts the state or federal declarations of a public health emergency.
Why settle, and what rules are in place
The motivation for settling the case now is that it speeds up the time frame for getting some people out of the prisons while the pandemic is ongoing, according to Carpenter.
Susan Pollitt, an attorney for Disability Rights NC, a plaintiff in the case, agreed with this objective. The releases will allow for more social distancing in the prisons and will ease the burden on medical staff and facilities, she said.
The settlement also establishes an anonymous complaint system for incarcerated people who think the prison system is not following the rules for COVID-19 mitigation. The state agreed to create this system after plaintiffs complained that people in prison faced intimidation or retaliation for speaking out. Numerous incarcerated people complained both to the courts and the media about conditions inside the prisons.
Who will run the complaint system, as well as other details about how the settlement will be carried out, “will be worked out in the days and weeks to come,” according to a press release from DPS.
Other rules that were already established by the court will be maintained. The prison system will continue to review cohort sizes, or how many people are incarcerated in shared dorms, units or blocks. Keeping those groups smaller helps prevent widespread disease transmission.
Regular COVID-19 testing for staff, regular surveillance testing for people in prison, and testing for people who develop symptoms is still required. Limits on how many people can be transferred between prisons and for what reasons will also stay in effect.
With the roll out of the vaccine, DPS is required to provide educational materials and incentives for incarcerated people to get vaccinated. As of Tuesday, 5,196 prison staff have been vaccinated, while 2,638 incarcerated people have been vaccinated with at least the first dose, according to DPS officials.
One boon of the settlement for DPS is that the department keeps its authority over who it lets out through its early reentry programs. That power could have been taken away should the state have lost the case at trial, or in further preliminary rulings by the judge.
The lawsuit was necessary to push the state to action, according to Carpenter.
“We had a number of advocacy and outreach efforts to state officials with no response, as if nothing could happen,” Carpenter said.
“The lawsuit really ensured that the state put protections in place for incarcerated people, and lives were saved. I don’t think that we’d see the releases that we have seen without it, and I think the same can be said for what’s going to happen as a result of this settlement.”