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In settling a lawsuit over likely unconstitutional conditions in the prison system during the pandemic, Gov. Roy Cooper’s administration finds itself in the crosshairs of criticism from Republicans for letting people out of prison and from public health experts and civil rights advocates for releasing too few people too slowly.
On Feb. 25, Cooper’s administration agreed to settle the case and to expedite the release of 3,500 people over the next six months, in addition to continuing coronavirus-related protections already in place for people inside the prisons.
In two joint legislative meetings of the Justice and Public Safety Committee on Tuesday, some Republican members criticized the settlement process that resulted in an agreement to release people from prison.
“Here in this whole negotiation, did anyone ever discuss the protection of the population? Criminals are going to be released and the possible rising crime and that could occur with release,” Rep. Allen McNeill said. “Did any of the data, or did y’all ever consider that data of what this is going to mean for the people that are living out here, releasing 3,500 criminals?”
But advocates who sued the state and pushed Cooper’s administration and the prison system to act feel the criticism should go the other way.
“The idea that, you know, Roy Cooper is somehow being attacked for doing too much here is the most absurd thing I’ve ever heard,” said Daniel Bowes, director of policy and advocacy at the American Civil Liberties Union of North Carolina.
There are “legitimate scandals” in the state prison system’s response to the COVID-19 pandemic, Bowes said, like the undercounting of deaths. Bowles finds the committee’s focus on the settlement instead to be disappointing.
“For more than a year, there’s been a disaster happening in the prisons,” Bowes said. “And what we saw was a constant sort of reluctance to provide meaningful release. There was absolutely no sort of urgency that wasn’t pushed along by the litigation.”
Minimal risk to public safety
Republican legislators, including Sen. Warren Daniel and Rep. McNeill, asked about the nature of crimes for which people could be considered for early release.
Tim Moose, the chief deputy secretary of adult correction and juvenile justice in the Department of Public Safety, mistakenly said in a hearing last week that only people serving sentences for nonviolent offenses would be released.
That is only true for one of the three mechanisms DPS is using to decrease the prison population, a program called Extended Limits of Confinement. The other two mechanisms for early release could apply to people who have been convicted of any class of offense, according to DPS officials.
The legislators focused on how these releases could affect public safety.
Todd Ishee, the commissioner of prisons, stressed that all the people who will be released under this settlement were already scheduled to be released in 2021 and that DPS does an individualized risk assessment for every person the system releases early.
The state typically releases approximately 1,600 individuals per month who have completed their sentences, according to Ishee. During 2020, DPS used early release mechanisms to release an additional approximately 400 individuals per month.
Tarrah Callahan, founder and executive director of Conservatives for Criminal Justice Reform who has worked with DPS for 10 years, has been following the litigation against the prison system and watched the hearing.
“I have confidence that any person charged with a violent offense or a crime against a person (not all of which are violent) — will be thoroughly reviewed to assess the safety of his/her release,” Callahan wrote to Carolina Public Press in an email.
“Certainly, people assessed to be a continued risk would not be eligible for consideration, so it’s arguable that the 3,500 will be mostly nonviolent.”
The types of releases that will happen through the settlement have already been happening for the last year, DPS officials said. The settlement speeds up the process a bit.
From February 2020 to February 2021, North Carolina’s state prison population dropped by almost 6,000 people. By October of this year, when all 3,500 people dictated by the settlement will have received their early releases, the population will likely have dropped by close to 10,000 people, according to Ishee.
That will mean that the number of people in North Carolina’s prisons will be at its lowest point since the state passed strict sentencing reforms in 1994.
Why settle
In the March 2 hearing, Republican Rep. Carson Smith asked why the Cooper administration decided to settle the case, especially in light of the improving COVID-19 rates across the state and in the prison system.
“A group I consider more liberal than me has sued an administration I consider more liberal than me, and a deal was reached,” Smith said, arguing that the settlement may have changed state laws.
But DPS officials deny changing any state laws, saying all the mechanisms for release in the settlement were already in place.
Instead, the state settled the case because it felt that it could get value out of the releases it was already doing and because it saw more orders from the judge on the horizon, according to Orlando Rodriguez, special deputy attorney in the N.C. Department of Justice who represented the defendants.
“That process was ongoing, and recommendations were imminent,” Rodriguez said, “And we felt that … orders were forthcoming.”
He was right.
The judge in the case, Vinston Rozier Jr. of Wake County Superior Court, had appointed a court liaison, Thomas Maher, the former executive director of the Center for Science and Justice at Duke University and former executive director of the state’s Indigent Defense Services, to make recommendations to the court.
Maher said he was going to recommend that the state broaden the categories for who would be eligible for release.
That would have taken some discretion away from DPS about who would have been released from prison. By settling the case, DPS retained authority over who would be released and how early, as long as it met the 3,500-person threshold of early releases over six months. The early releases can be as little as two weeks, though plaintiffs in the case said they expect many of the releases to be for more significant time.
Misunderstanding health in prison
In several court hearings and on press calls in the past year, DPS officials have compared the rates of COVID-19 inside the prisons to the rates of COVID-19 in the general public.
Plaintiffs in the case pointed out how DPS calculations differed from either the national Centers for Disease Control and Prevention or the N.C. Department of Health and Human Services and that DPS’ numbers were therefore artificially low.
DPS used those numbers to try to show the court and the public that, comparatively, the case rates in prison were not bad.
While 9% of North Carolinians have contracted the virus, 20.5% of the people who have been incarcerated in North Carolina state prisons since March 2020 have tested positive for COVID-19. In addition, the mortality rate for people in the prison system has been significantly higher than for the state as a whole.
Now Republican members of the legislature are using DPS’ own calculations to criticize the department for entering into the settlement.
“With the positivity rate, as you described, lower than what is out in the general public,” Smith said, wouldn’t it be safer to keep people in prison?
Even accounting for disagreement over the true positivity rate for COVID-19 in the prisons, using only case rates to compare the health safety of people in prison or out of prison doesn’t make a lot of sense, according to Lauren Brinkley-Rubinstein, assistant professor of social medicine at UNC Chapel Hill.
“I cannot think of any circumstance in which people would be more healthy while behind bars,” Brinkley-Rubinstein said.
Regarding the pandemic, if people wear masks and have access to testing, they can be kept safe when they are not incarcerated, Brinkley-Rubinstein said.
Ishee said that every person is tested for COVID-19 before being released from prison.
Ishee and Brinkley-Rubinstein seem to agree that the current relatively low rates of COVID-19 infections in the prisons is not a guarantee that more outbreaks will not happen.
“The possibility still exists that, you know, the infection trend could reverse itself,” Ishee said.
Brinkley-Rubinstein, who founded the COVID Prison Project and has been tracking COVID-19 outbreaks in prisons across the country, said low case rates now are not a good predictor of where the prisons will be in a month. She and other public health experts have been pushing the state to reduce its prison population since before the first cases were identified in the state’s prisons.
“In the context of COVID, decarceration is the best mitigation strategy,” Brinkley-Rubinstein said. “It means that we don’t have a high number of people in overcrowded spaces with no ability to engage in social distancing.”
After almost a year of advocacy and litigation, Ishee seems to agree.
“We do know that having less density in our prison system is going to be safer for our staff and safer for our offenders during this pandemic,” Ishee said at the end of Tuesday’s hearing.
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