Gov. Roy Cooper and the state prison system agreed to settle a lawsuit over the conditions inside state prisons during the COVID-19 pandemic. The judge in the case, NAACP v. Cooper, had already issued a preliminary injunction, ruling that the conditions in the prisons were likely unconstitutional and that the groups suing the state had a high likelihood of winning. 

Before that case could go to trial, a process that could have taken months, the state and the civil rights groups decided to settle on their own terms. The agreement to release 3,500 people over the next six months earned lots of headlines and spurred questions in the state legislature and among the public about public safety, who will be released and what will happen to those who remain. 

This FAQ will explain why the settlement is important, why it will have a minimal impact on public safety and what happens next. 

Impact of the pandemic in prisons 

Question: How many people have tested positive for COVID-19 in the prison system? 

Answer: According to the Department of Public Safety, 9,786 people in state prisons have tested positive for COVID-19 since March 2020. Another 3,586 prison staff members have also tested positive. 

Question: How many people have died from COVID-19 in the prison system? 

Answer: According to DPS, 50 incarcerated people have died from COVID-19 since March 2020. At least another nine staff members have died, though DPS officials have recognized that they may not know of all the cases in which a staff person died from the disease. 

Question: How does the pandemic in the prisons affect people who do not live or work in the prison system? 

Answer: In March, public health experts from the University of North Carolina and from Duke warned Cooper that COVID-19 outbreaks in prisons and jails would likely help spread the virus to other parts of the state. Many of those experts had studied how other infectious diseases like HIV and hepatitis C spread within prisons then to the wider community. 

Research has since shown a correlation between counties that have prisons and having higher rates of COVID-19, and that high rates of infection in prisons disproportionately impact Black people and communities

Public safety 

Question: Who will be released?

Answer: According to DPS, people will be released using three mechanisms called Extended Limits of Confinement, discretionary credits and the Mutual Agreement Parole Program.

DPS has full discretion on who to let out and it is not clear how many people will be released under each mechanism. That means that all people being released are considered low risk by DPS, according to Simpson. 

“They’re not letting go anyone that they don’t consider to be safe based on their state standards of what safety is,” Simpson said. “So it’s an implicit acknowledgement that they are holding thousands of people for reasons unrelated to public safety during a global pandemic.”

According to Todd Ishee, the commissioner of prisons, every person being released is given an individual risk assessment. This process remains in place for the settlement, though it is being sped up.

Question: Are the releases a risk to public safety? 

Answer: According to Department of Public Safety officials, the risk to public safety is minimal. All people who will be considered for release were already scheduled for release in 2021, according to Tim Moose, chief deputy secretary of Adult Correction and Juvenile Justice, who addressed the joint House and Senate Appropriations On Justice And Public Safety on March 2, 2021, about this issue. 

Moose said no one who will be considered for release is currently serving a sentence for a crime against a person.

However, this is only true for one of the three mechanisms for release that will be used, the Extended Limits of Confinement program, where people are still technically serving their prison sentences but are doing do from their homes. Other states call this home confinement.

For the other two mechanisms of release, discretionary time credits can be used for a wide variety of offenses, though the people who benefit from these credits will already be close to their statutorily required release date, according to Elizabeth Simpson, associate director of Emancipate NC and an attorney for the plaintiffs.

The Mutual Agreement Parole Program can be used for people who were sentenced before 1994. This group, given the longer sentences, will likely consist of older people, some of whom may have been sentenced for crimes against people. In order to qualify, they need to have been infraction-free for 90 days and be on minimum or medium security. 

Question: Are people released still under supervision? 

Answer: Yes. The three mechanisms that will be used for release all existed before the settlement and were regularly used by DPS. 

People who are released by the three methods will still be under state supervision until the ends of their sentences. 

Question: Will crime victims be notified when people are released? 

Answer: Yes. Regardless of the settlement, crime victims can choose to be notified when a person related to their case is released from prison, per the Crime Victims’ Rights Act

Releases

Question: How can I get my loved one considered for release? 

Answer: As part of the settlement, DPS retains control over who will be released. The plaintiffs cannot help a person in prison or their family members advocate for the release of a certain person under any of the DPS programs. 

If you feel that you or your loved one is wrongly left out of consideration for release, lawyers at organizations like Prisoner Legal Services may be of assistance. 

Question: Is there a cap on how many people can be put in prison? 

Answer: No. The settlement required the prison system to release people from prison, but it did not stop the prison system from accepting new people nor will it force the prison system to release people who could be a public safety threat. 

As part of the settlement, which will only last a year or until the state of public health emergency order is lifted, the prison system will have to keep its population at or below the number of people who will still be incarcerated in August 2021, plus 10%. If the prison population grows again by over 10% after the 3,500 people are released, the state will have to use the same mechanisms to release more people. 

Question: Why 3,500? 

Answer: According to Ishee, commissioner of prisons, the civil rights groups representing the plaintiffs wanted more people to be released. DPS said 3,500 people was the capacity for releases that the agency could handle using the available release mechanisms and its current staffing level. 

Question: Are they releasing people with COVID-19? 

DPS tests every person for COVID-19 prior to release and will not release people who test positive.

There are cases, which are not affected by this settlement, in which a person is statutorily required to be released from prison on a certain date. If that person is positive for COVID-19, DPS works with the community to find safe housing for the person, according to Ishee, commissioner of prisons. 

Those remaining inside 

Question: Is vaccination part of the settlement? 

Answer: No. The settlement did not include requirements to vaccinate either staff or people who are incarcerated. DPS is already offering the vaccine to both groups and will be able to offer more vaccines soon, according to Ishee, commissioner of prisons. 

As part of the settlement, DPS is required to provide educational materials about the vaccines. To date, 44% of staff members have been vaccinated, which is about as many as want it, according to Ishee. Per an internal prison survey, 65% of people in prison say they want to be vaccinated, he said. 

Question: Are incarcerated people safer if they stay in prisons? 

No. DPS has incorrectly or misleadingly reported that the mortality rate of COVID-19 in prisons is less than it is in the rest of the state. The plaintiffs in the case have also argued that DPS’ method for calculating the percentage of positivity rates for COVID-19 is also misleading, as the method for the calculation is different from what the Department of Health and Human Services uses for the rest of the state. 

Prison health care is also historically poor, as is well-documented by research, lawsuits and in a publication by a former medical director for the Department of Public Safety

Question: I have a complaint about how the prisons are handling COVID. What do I do? 

Answer: As part of the settlement, DPS is required to set up an anonymous complaint procedure for prison violations of COVID-19 policy. The prison system cannot retaliate against the person who files a complaint. 

If you feel as if you or your loved one was or is being retaliated against for complaining about the prison conditions during COVID-19, or about prison staff not following the rules, please contact Jordan Wilkie, reporter at Carolina Public Press. 

Question: What about the people who stay in prison? 

Answer: The settlement is meant to benefit people who stay in prison as well as those who are released, according to the civil rights groups that represented the plaintiffs. 

As part of the settlement, DPS has either created or promised to continue incentives for incarcerated people to receive the vaccine, for DPS to keep group sizes such as the number of people in prison dorms as small as possible and continue isolation and testing policies for people prior to transfer or upon showing symptoms. 

The settlement also requires DPS to notify emergency contacts of incarcerated people should they become critically ill. 

Ishee, commissioner of prisons, also said reducing the prison population will help protect people who are still incarcerated and the prison staff. Those people will have access to masks, cleaning supplies and, with fewer people in the prisons, will have an easier time socially distancing. 

“Prisons were not built for social distancing in mind, you know; there were densely populated dormitories and celled housing,” Ishee said. “Achieving social distancing has been a challenge.”

Jordan Wilkie

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.