Early release and alternative detention during COVID-19

May 7, 2020

An APR News Feature --Part of an innovative collaboration between Alabama Public Radio, the commercial newsroom at WVUA23-TV, and the University of Alabama's Center for Public Television.

The coronavirus is spreading inside Alabama’s prisons. So far, one prisoner has died and at least a dozen other inmates and guards have tested positive for the virus. Inmates and staff say they fear the situation could get much worse. That's leading some prison advocates to ask state lawmakers to consider early release and alternative detention to help stop the spread of infection. 

But others like Alabama Republican Senator Cam Ward has been touting the new rules and regulations the state’s jail and prison systems have implemented to keep COVID-19 from spreading inside detention centers.

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"They’re going in like most local officials are, the local governments. They’re testing them for fever and symptoms. If they have symptoms, they’re putting them in isolation," Ward said. "They are able to access their 60 days of reserve of cleaning material and other stuff to make sure they’re constantly cleaning and sterilizing what’s going on in the prison."

But prison advocates say temperature checks and cleaning will only go so far. Jenny Carroll is a professor of law at the University of Alabama.

"When you’re in a dense population that’s unable to social distance like a jail or prison, the probability that the infection rate is going to be high is not surprising," she said.

Carroll is working with a University of Alabama colleague and a group of students to try and get inmates released during the coronavirus pandemic.

They’re all asking Gov. Kay Ivey to consider alternative detention and early release for non violent inmates. That list also includes elderly prisoners who are vulnerable to COVID-19.  But that’s something Ward said is impossible to do.

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"You would have to change the law," Ward said. "She doesn’t have the power to pardon or parole anyone out of prisons anymore. That was removed in the late 1990’s. You’d have to change the law, and without us being in session, you can’t do that."

Carroll acknowledges what she’s asking Ivey to do is unprecedented, but so is the coronavirus outbreak.

"I think when Cam Ward says Ivey doesn’t have the power to do this, he’s right," Carroll said. "Under normal circumstances, you wouldn’t expect the governor to make these types of decisions, but we’re not under normal circumstances."

Carroll helped write a letter to Ivey and other state leaders laying out a plan on how to make it all work. The proposal includes early release and alternative detention.

"There’s actually a pretty clear pathway under which a governor can use executive power to remove inmates from detention and place them in safe locations in order to stop the spread of an epidemic," she said. 

Carroll points to part of the Alabama Code that states “convicts can be removed to a safe place within the state during any epidemic and infectious or contagious disease… to insure the safekeeping of the convicts.”

The professor said Ivey could put inmates on home arrest with electronic monitoring or place them in other facilities that are currently vacant due to the outbreak.

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Carroll is also calling on police and sheriffs to consider releasing defendants on bond to prevent new inmates from entering detention centers. She said law enforcement could also consider 90-day review periods authorized by law to ask judges to revisit bond conditions for defendants in custody.

"It’s not the expectation that the Alabama system, if a true emergency arises, that we have to follow the business as usual policies on how decisions are made in terms of release or detention," Carroll said. 

But Ward said there are other options for inmates to be released, especially those dealing with major medical problems.

"Now we do have a provision in place on medical necessary conditions, and you’d have to apply to get released," Ward said. "If you want to go beyond that, the legislature has to meet to be able to do that, and we can’t meet. There’s no way to get that done."

Ward said it’s ultimately up to Ivey to call the shots on how to handle detention centers during the coronavirus outbreak. But he said he thinks a special session is bound to happen soon.

"You’re looking at a crisis that none of us have faced before," Ward said. "I think we’ll come back. But what we come back on is going to be up to her. But we’re going to have to come back into special sessions."