Jails and prisons are petri dishes for disease in normal times. These are not normal times. Local, state and federal officials must take action now if we are to avoid catastrophic illness and death in those facilities as COVID-19 inexorably advances. The prisons should not be emptied out, but thinning those populations can keep those in and out of prison safer from the virus.

It’s no secret that prisons will be difficult places during a pandemic. Many people are jammed together in small spaces and overcrowding can easily make six-foot distancing impossible. In some places, normal cleaning procedures are hindered by restrictions on the possession of alcohol-based cleaning solutions and hand sanitizer, and even cleaning rags may be limited. The limited medical facilities in prisons and jails can be quickly overwhelmed. As federal defenders David Patton and Jon Sands pointed out in a recent letter to the attorney general, “lowering the population of prisons and jails is the simplest and most effective way to disrupt the transmission of COVID-19.” A smaller inmate population — especially if it is made smaller by removing the people who need the most care and attention — will allow greater resources to be devoted to cleaning, distancing and proper medical care. If the virus runs through a prison, too, it inevitably will come back to surrounding communities through prison workers; what goes in will come back out.

The “solution” in some institutions might be to isolate the most vulnerable in solitary confinement, but even that cruelty will not be effective if significant parts of a jail or prison population contract the virus.

There are several ways to thin incarcerated populations: by sending fewer people there in the first place, by releasing people from jail and by granting reprieves or commutations of sentence. While we have seen some thinning of the jail populations in Hennepin and Ramsey counties, there have been no COVID-19 related reprieves or commutations in Minnesota, and there are unlikely to be any. Sadly, any clemency grant under our current unwieldy system requires a unanimous vote by the governor, attorney general and chief justice of the Supreme Court, and hearings are held only twice a year. A reform bill working its way through the Legislature has not yet become law.

While clemency is stilted here, there is another avenue. The Minnesota Department of Corrections, on its website, recognizes that “the Commissioner has authority to grant conditional medical release and to grant work release status to those who qualify,” and notes that “he is actively considering how he can exercise that authority in a way that protects communities but that also helps to minimize risk for those who are incarcerated.” The time to employ that ability is now, while (per the same source) there are no cases of COVID-19 that have been detected in the state prisons. Once cases do arise, there will be the additional problem of sending infected people into the general population. It is imperative that the most vulnerable be removed before that happens.

Certainly, clemency by governors (in other states) or releases by the commissioner of corrections (here) can only be one part of a greater effort. It must be combined with other measures, including a beefing-up of staff to clean and care for the sick, and the better provision of cleaning and medical materials and resources. It does appear that the Minnesota Department of Corrections has taken positive steps on this already.

The federal clemency system, which is especially messy, needs concerted attention. President Donald Trump should for now set aside his informal approach to clemency and impanel a small group of experts to very quickly get him the names of those best suited to medical clemency. It is essential that such a group work outside of the Department of Justice, which has a long history of sabotaging and delaying this kind of effort. At the same time, Trump should mandate that the Bureau of Prisons cooperate with that group in providing data and access to records.

Our leaders should be bold in choosing to thin incarcerated populations. While many of those in prison earned — and have served — long sentences of imprisonment, that is not supposed to be a death sentence. For the most vulnerable and elderly prisoners, a failure to act now might turn out to be just that.


Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas.