The fast way for Gov. DeWine to save lives in Ohio prisons

April 20, 2020 12:15 am

Photo by Darrin Klimek/Getty Images.

Gov. Mike DeWine has made Ohio a national leader in responding to the COVID-19 pandemic, saving countless lives in the process. With the virus spiking in some Ohio prisons, DeWine can save countless more lives by using a little-known tool: the reprieve power.

Ohio’s prisons contain nearly 50,000 inmates and are visited daily by thousands more prison staff. As of April 19, 2,400 prisoners and 244 staff members had tested positive, and at least 6 prisoners and one corrections officer had died—an alarming rise in recent days that, unfortunately, is likely to continue. As DeWine has explained: “Once it gets into a prison, it’s like every other group of people. It takes off.”

In fact, the prognosis for prisons appears to be even worse. Despite efforts and exceptions, our prisons tend to be crowded, unsanitary places. Social distancing, under current conditions, is impossible. By my math, an Ohio prisoner is currently 50 times more likely to have tested positive for COVID-19 than an Ohioan generally. (1).

I believe that Ohio’s prisons are too crowded to begin with. That’s why I work as an attorney for a legal nonprofit that tries to make Ohio’s criminal-justice system more redemptive. But you don’t need to agree that 50,000 prisoners is too many to agree that 50,000 prisoners is too many right now. 

After all, each extra prisoner means less space for everyone else. And each extra prisoner infected is another potential draw on staff and medical resources, including hospital beds and ventilators in the already-undersupplied rural areas where most Ohio prisons are located.

To his credit, DeWine has released or supported the release of a few hundred prisoners thus far, including seven commutations this past Friday — an important start. He has also noted the procedural hurdles and inefficiencies that make one-by-one applications an imperfect solution.

That’s where the reprieve power comes in. A reprieve is a temporary delay in punishment: a prisoner granted a reprieve is not off the hook forever, but rather gets a respite. 

As in nearly all states, Ohio’s constitution grants DeWine this power. And, as a recent, broad-scale Ohio reprieve application points out, this type of mercy is not constrained: the governor can use it whenever and however he wants to, whether the prisoner asks for it or not. 

That’s why, as scholars and commentators outside Ohio have noted, the reprieve power is such an apt tool for this moment: it is the quickest, cleanest way for DeWine to shrink the prison population to a manageable size as the virus looms. 

Rather than requiring thousands of prisoners to file (and courts or the parole board to sift through) individual applications, DeWine could singlehandedly allow the least dangerous and most medically at-risk prisoners to ride out the pandemic at home. That would keep them safer, and it would also keep the remaining prisoners and prison staff safer, too. That’s probably why Pennsylvania’s governor recently took a similar step.

For those concerned that Ohio prisoners would be reaping a windfall, it’s important to remember that a reprieve doesn’t cancel any part of a sentence: it simply delays when a prisoner must serve the balance of it. Granting prisoners a delay in paying their debts to society under these circumstances would not only save lives, but is also consistent with our instinct to pause on collecting other kinds of debts during this crisis.

To be sure, a mass reprieve — say, all elderly or otherwise at-risk prisoners serving sentences for lower-level crimes or with limited time left on their sentences — would pose logistical challenges. First, wouldn’t the prisons be overwhelmed when it came time for reprieved prisoners to report back? Second, how would we keep track of them in the meantime?  

These problems seem manageable — and certainly more so than more full-blown outbreaks across the prison system. First, report-backs could be staggered, and prisoners with spotless records during their reprieves might ultimately merit full commutations down the road. Second, phone check-ins or even electronic monitoring would be far less taxing than keeping nearly 50,000 people under guarded supervision during a pandemic.

Finally, granting large-scale reprieves should not pose an undue risk to public safety. Crime rates are already falling nationwide amid the crisis, even as local judges and law enforcement veer away from incarceration. Moreover, the people who would be good candidates for reprieves are — like the vast majority all state prisoners — coming home at some point anyway. It’s not a matter of whether, but when.  

If there were no COVID-19, that “when” might take longer. But with the virus gathering steam inside Ohio’s prisons, the time is now.

  1. Assuming a state population of 11,689,442; a prison population of 48,765; and 11,602 total Ohio cases versus 2,400 prisoner cases, as updated on on April 19 (updated daily).

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Michael Zuckerman
Michael Zuckerman

Michael Zuckerman is an attorney and Skadden Fellow at the Ohio Justice & Policy Center. He previously served as president of the Harvard Law Review and as a law clerk to U.S. Supreme Court Justice Sonia Sotomayor.