Governor DeWine declared a state of emergency in response to COVID-19 just days before the World Health Organization declared it a “pandemic” requiring “urgent and aggressive action” to control its spread. After the first documented coronavirus cases in Ohio, in just five weeks, that number grew to 7153 confirmed cases, 2156 hospitalizations, and 309 deaths in Ohio alone. This public health crisis drastically affects everyone, including prisoners in the Ohio Department of Rehabilitation and Correction.
The prison population in Ohio must be minimized through the course of COVID-19. If the prisons are left as they are currently, it will allow the virus to continuously spread and unnecessarily endanger not just prisoners, but also the general public.
WHY IS IT SO IMPORTANT TO ACT PROMPTLY REGARDING OHIO PRISONERS DURING THE CORONAVIRUS PANDEMIC?
1. Prisoners are not able to take the same precautions as the general public.
In order to slow the spread of COVID-19, experts and authorities have instructed safe practices during this period including social distancing of at least six feet from other people, washing hands frequently and for 20 seconds at a time, and keeping surfaces cleaned that are regularly touched. This is because the disease is transmitted directly from person to person, through respiratory droplets when an infected person coughs, sneezes, or speaks, or touching a surface with the virus on it and then touching your face, eyes, nose, etc.
Prisoners are not able to abide by these principles and, therefore, cannot keep themselves safe. The population density in the prisons is too great and prisoners are constantly within six feet of each other. Their facilities do not allow for this distance while they sleep, eat, or shower. Their access to regular handwashing and sanitizing is limited, and they cannot control keeping various surfaces clean that are touched by many. Ohio’s Stay at Home order states that we should all avoid gathering in groups of more than 10 people, and this certainly cannot be followed inside a prison.
2. The prisons are not prepared for an internal coronavirus outbreak.
There is a lack of medical resources for the prisoners, a lack of equipment and ventilators to appropriately treat the coronavirus cases that would quickly spread through the prison population. This will lead to significantly more casualties than in the general public.
3. Inadequate testing is not representative of the true scope of COVID-19.
Test results are slightly delayed, and many people showing symptoms are sent home without a test. So, at any given time, the statistics we do have are not representative of the true reach of the coronavirus outbreak. Because of this, in taking further preventative action, it should be assumed that the situation is even worse than we know.
4. The peak has yet to be reached.
It is projected that the peak of coronavirus cases will not be for several more weeks, if not longer. The pandemic is still progressively spreading. Even once the peak has passed, there will still be new cases every day.
5. Coronavirus can be spread by asymptomatic carriers.
People can carry and spread coronavirus for up to 14 days without showing any symptoms. This makes it impossible to monitor which employees could bring COVID-19 into the prisons and which employees could bring it back out into the public.
6. Currently, there are about 49,000 inmates in Ohio prisons.
Ohio has 7153 confirmed cases and 309 deaths with most people staying at home and practicing social distancing. Without the resources and facilities to implement COVID-19 precautions, the virus will make its rounds quickly and easily through thousands more.
7. COVID-19 also risks violating constitutional rights of prisoners.
Many prisoners were not sentenced to death through the court system but now find themselves in a potentially fatal sentence. The gravity and likelihood of serious illness and death in Ohio prisons is too great to ignore.
8. There are already documented cases in Ohio prisons.
Even with minimal testing, there are 10 prisoners and 27 employees that have tested positive so far. Ohio prison populations must be minimized promptly because coronavirus is already starting to spread through the prisons. Soroka & Associates is available to assist in the process.
WHAT CAN WE DO ABOUT THIS IN OHIO?
There are two options in the state of Ohio regarding early releases to minimize the prison populations during the coronavirus outbreak: overcrowding and reprieve.
OVERCROWDING – REVISED CODE SECTION 2967.18
When the director of rehabilitation and correction determines that the total population of the state correctional institutions exceeds the capacity of those institutions, the director shall notify the correctional institution inspection committee of the emergency.
The director shall not notify the committee that an overcrowding emergency exists unless the director determines that no other reasonable method is available to resolve the overcrowding emergency. So, it is determined well before reaching the governor that moving certain prisoners out of the prisons is the only reasonable way to resolve the overcrowding.
Then the correctional institution inspection committee may recommend to the governor that the prison terms of eligible prisoners be reduced. Upon receipt of a recommendation from the committee or the director of rehabilitation and correction, the governor may declare in writing that an overcrowding emergency exists.
WHAT IS HAPPENING NOW?
Currently, there are at least 141 Ohio inmates scheduled to be released within 90 days that Governor DeWine is considering to be released early based on the eligibility requirements in the overcrowding statute.
Another 26 prisoners over the age of 60 and suffering from chronic medical conditions are being considered for early release as well.
Normally under this statute, if a prisoner is eligible, they can receive a total of ninety days of term reduction for each three years of imprisonment actually served.
Any prisoner released during an overcrowding emergency is subject to post-release control sanctions imposed by the parole authority.
As Governor DeWine takes action regarding prisoners that have scheduled releases within 90 days, the eligibility requirements of the overcrowding statute should be applied to other Ohio inmates as well, getting a second wave of early releases from Ohio prisons.
WHO DOES NOT QUALIFY UNDER THE OVERCROWDING STATUTE?
The overcrowding statute acts first to exclude several groups of prisoners from being eligible for a sentence reduction.
A sentence reduction will not be granted to any prisoner who is serving a term for:
1. aggravated murder, murder, voluntary manslaughter, involuntary manslaughter, felonious assault, kidnapping, rape, aggravated arson, aggravated robbery, or conspiracy in, complicity in, or attempt to commit any of these offenses.
2. any other offense punishable by life imprisonment or by an indefinite term of a specified number of years to life.
3. any felony committed while the person had a firearm on or about their person or under their control, except for carrying a concealed weapon.
4. drug trafficking violations in § 2925.03.
5. engaging in a pattern of corrupt activity.
6. violent sex offenses in § 2971.03.
7. or who was denied parole or judicial release already during the term they are currently serving.
WHO DOES QUALIFY UNDER THE OVERCROWDING STATUTE?
From the prisoners remaining, the first group that receives a sentence reduction must not be serving a term for:
1. an offense of violence that is a felony of the first, second, or third degree, or that previously was, by law, considered an aggravated felony of the first, second, or third degree, or a felony of the first or second degree, or
2. a felony of the first or second degree set forth in O.R.C. Chapter 2925.
If all eligible prisoners have received a sentence reduction through the statute, then all other prisoners can be considered, as long as they do not fall into any of the restricted categories.
A reprieve is the temporary suspension by the governor of the execution of a sentence or prison term. The governor shall have power, after conviction, to grant reprieves, commutations, or pardons, for all crimes and offenses upon such conditions as the governor may think proper, except treason and impeachment.
The adult parole authority may recommend to the governor the pardon, commutation of sentence, or reprieve of any convict or prisoner or grant a parole to any prisoner for whom parole is authorized, if in its judgment there is reasonable ground to believe that doing so would further the interests of justice and be consistent with the welfare and security of society.
The populations most at risk during COVID-19 are the elderly, the immunocompromised, and those with other chronic medical conditions.
Being immunocompromised includes cancer treatment, smoking, bone marrow or organ transplantation, HIV or AIDS, or prolonged use of corticosteroids.
Other medical conditions specifically at risk during the pandemic are lung disease, asthma, heart conditions, diabetes, renal failure, and liver disease.
Out of nearly 49,000 prisoners in Ohio, thousands fall into these at-risk categories.
Although reprieves are highly deferential, decisions will be made trying to balance the safety of at-risk individuals and the protection of the public from crime. This includes possible conditions that follow safety procedures and allow for reincarceration if necessary. To move out prisoners that are a high-risk during COVID-19 and a low risk of recidivism would drastically impair the spread of the virus across the state.
It is essential during this public health crisis that Governor DeWine exercise the broad discretion given to him by the Ohio Constitution, and work together with the adult parole authority to grant reprieves starting immediately. This will allow for many more Ohioans to follow the suggested quarantine procedure for the general health and safety of the public, protect the constitutional rights of prisoners, and save lives.
If you know someone who may qualify for release under the overcrowding statute or be a suitable candidate for a reprieve, consider seeking the advice of the experienced attorneys of Soroka & Associates LLC to assist in the intricacies of early release.