Reducing the number of people in jails and prisons is increasingly a focus of state, local and also nationwide efforts to protect public health during the COVID-19 crisis. However, despite some progress, Kentucky still has a long way to go on this front and it’s critical to move quickly given that at least one individual in a Kentucky prison has already tested positive for COVID-19.
Incarcerated individuals are at a heightened risk of contracting COVID-19 if the virus enters jails and prisons because incarcerated people are more likely than the general population to have existing chronic health conditions that make them vulnerable to complications from the virus. People who are incarcerated, particularly in overcrowded environments like many of Kentucky’s jails, cannot follow social distancing guidelines and may have limited access to hygiene and other cleaning products. This unsafe situation also puts at risk correctional staff and broader communities as well, especially in jails, where turnover is high, space is limited, and physical contact between those incarcerated and facility staff is unavoidable.
Progress in reducing numbers through the release of individuals being held pretrial or serving misdemeanor sentences
In light of these concerns, Kentucky Supreme Court Chief Justice Minton sent a letter March 20 to judges across the state, directing them to work with jailers and other county officials to safely release as many individuals awaiting trial as possible, and as quickly as possible. Prosecutors, public defenders and judges have worked together to make significant progress in releasing individuals incarcerated while awaiting trial because they cannot afford bail — with the number of individuals in county custody (either awaiting trial or serving misdemeanor sentences) decreasing by 28% in a two-week period.
However, even with these reductions, many jails continue to be overcrowded and the reduction in numbers has been uneven across facilities with some experiencing significant declines, while others actually saw population increases. And it is important to keep in mind that jails at “only” 100% of capacity are still too crowded to effectively address public health concerns related to large numbers of people in small, confined spaces.
You can see how close to or above capacity local jails are, and the categories of people housed there (i.e., the share who are in state custody) as of March 26 in the map below.
What still needs to be done
At the same time that there is still room for improvement in some counties regarding pretrial release and the release of people serving time on misdemeanors, many jails remain overcrowded due to a large number of individuals held there who are in state custody serving time on a felony sentence. (Under Kentucky law, individuals convicted of a Class D felony are required to serve their sentence in a local jail.)
To reduce the number of individuals in state custody held, action is required by the Kentucky Parole Board and the Kentucky Department of Corrections (DOC). There has reportedly been just an 8% drop in the number of people in DOC custody in county jails during the two-week period and a 1% drop in the state prison population where individuals serve longer sentences for higher-level felony convictions, although the prisons are less crowded (currently under capacity overall) than the jails.
Recommendations from the Kentucky Department of Public Advocacy to reduce the number of people being held in state custody
The following actions recommended by the Kentucky Department of Public Advocacy (DPA) need to be taken immediately to reduce the number of people incarcerated and also to prioritize release of those with medical conditions.
The Kentucky Parole Board should:
Release medically at-risk individuals. According to DPA, the Parole Board has the authority to release those who qualify for medical parole due to a terminal illness or who qualify for medical parole due to significant medical impairment.
Amend its eligibility policy on an emergency basis to allow for immediate parole consideration for the following groups:
- Those certified by DOC to be at high-risk of significant complications from COVID-19 under CDC (Centers for Disease Control and Prevention) guidelines, including those with asthma, cancer, heart disease, lung disease and diabetes.
- Individuals serving nonviolent Class D (lowest-level felony) and Class C sentences in county jails. DPA points out: “The risk of spreading infection in jails is especially severe in light of the chronic overcrowding in Kentucky jails. Jails will not have the capacity to contain the spread of infection and jails are not equipped to handle the medical crisis that would ensure when trying to address COVID-19 within the jail. Jails are also at greater risk for infection because people are constantly being booked and released, potentially exposing other inmates and staff to COVID-19.”
- Release all persons within 180-days of their anticipated release date.
Automate the release of individuals who are nonviolent and low-risk (rather than taking valuable time and resources of the DOC and parole board at this challenging time).
Suspend the use of incarceration for technical parole violations such as nonpayment of fines and reporting violations. Exceptions would be made when necessary in individualized instances to protect public safety.
The Kentucky Department of Corrections should:
- Also play a role in limiting the use of parole revocation in cases involving technical violations.
- Identify the medically at-risk population, enabling action by the Parole Board and courts to help mitigate the risk.
- Reduce the population in overcrowded local jails by transferring individuals in state custody who cannot otherwise be released to other less crowded facilities.
- Enact recommended public health measures, including complying with CDC, Kentucky Department of Public Health and National Commission on Correctional Health Care Guidelines; ensuring access to soap, tissue/toilet paper, and cleaning/sanitizing products at no cost to incarcerated people and ensuring that people are provided clean laundry on a regular basis.
- Develop a medical quarantine plan in consultation with the CDC and Department of Public Health, as well as a plan for the transfer of people who cannot be effectively cared for in the prison setting.
In addition to these actions, DPA recommends transparency in communications with family members and the public, including providing regular updates to the public about the spread of the virus in DOC facilities and the measures being taken to address it.
Other justice system actions to reduce the number of people in jails and prisons
Law enforcement officers serve as the gateway to our local jails – and jails are required to accept any person arrested within the county or jurisdiction the jail serves. As noted previously, the flow of people in and out of local jails is very high, increasing the risk of virus transmission both within the facility and throughout the community in which the facility is located. In addition to actions suggested above that can be taken by judges, prosecutors, the Parole Board and the DOC, law enforcement can also help by taking steps to reduce the number of people arrested and taken to jail, such as by citing and releasing people accused of low-level, nonviolent crimes. The Vera Institute has published helpful guidance detailing best practices including the police and law enforcement, which could help keep fewer people from entering jail during this dangerous time.