Safe to Release Violent Offenders at Risk for COVID-19: Paper

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Efforts to compassionately release incarcerated individuals at risk from the coronavirus should be extended to violent offenders, contends a forthcoming paper in the Notre Dame Law Review.

States should widen their focus from “the lowest-hanging fruit: those detained for inability to pay bail, technical parole violations, minor misdemeanors, and the like,” to elderly incarcerees serving lengthy sentences for violent crimes, the paper says.

The paper’s authors—J.J. Prescott, Benjamin Pyle and Sonja B. Starr, all from the University of Michigan Law School—argue that aging inmates are particularly vulnerable at crowded penal facilities that cannot implement social distancing, or provide conditions of basic hygiene, including soap and hand sanitizer.

The majority of inmates serving long sentences for violent crimes, such as murder, manslaughter, rape or sexual assault, robbery, and assault, are over the age of 55, and many have co-occurring conditions such as diabetes or immune systems weakened by extended substance abuse, research has shown.

Excluding violent offenders from release plans created to minimize exposure to COVID-19 in prisons will “undermine” the effectiveness of measures aimed at protecting both staff and the incarcerated population, according to the paper’s authors.

“Yet many governors have hesitated [to release them] due to fears of violent-crime recidivism,” they wrote.

To contest those arguments, the researchers conducted a study to examine recidivism rates among violent offenders released from prisons.

They used post-release crime data on hundreds of thousands of American inmates from the National Corrections Reporting Program (NCRP) and publicly available data from the Interuniversity Consortium for Political and Social Research (ICPSR) running from 1991 to 2016.

The ICPSR data contains information regarding prison term records, prison admissions, and prison releases all on an individual case level, along with year-end prison population counts.

This data was then narrowed down to look at some 7,000 individuals over the age of 55 who had served at least five years in state prisons for a violent offense to calculate their recidivism rate.

The researchers found that that one of every 10 violent offenders aged 55 or older returned to prison for new crimes with three years of release. Most of those who returned were for technical violations: just one of every 20 released offenders was returned because of another violent crime.

“Our synthesis of the available evidence suggests that released violent offenders, especially homicide offenders who are older at release, have lower overall recidivism rates relative to other released offenders,” the researchers concluded.

Considering the data, the researchers observed that “during this pandemic, [releasing violent offenders] is much less dangerous than keeping them behind bars.”

The paper acknowledged that every facility contained prisoners who could not safely be released into the general population.

“But the data tell us that such cases are likely to be relatively few, and officials should be required to identify them based on clear evidence,” the paper said.

Releasing previously violent offenders does not need to mean “flinging open the prison gates indiscriminately,” wrote the authors.

Controlling and mitigating factors could mean temporary transfers to home confinement for the duration of the emergency in each individual institution. Measures such as electronic monitors could also be employed.

And they recommended that before releasing any prisoners—whether convicted of violent or non-violence offenses—authorities should identify safe-housing options that will allow them to avoid exposure to the virus.

J.J. Prescott is the Henry King Ransom Professor of Law and co-director of the Empirical Legal Studies Center at the University of Michigan Law School. Benjamin Pyle is a JD candidate at the University of Michigan and also studying for a Ph.D in economics. Sonja B. Starr is the Henry M. Butzel Professor of Law and co-director of the Empirical Legal Studies Center at the University of Michigan Law School.

Their paper can be accessed here.

This summary was prepared by TCR staff writer Andrea Cipriano.

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