When Governor Northam sent back budget amendments to the General Assembly for the Reconvene Session, he included, in an attempt to minimize the health and safety risks in prisons from the coronavirus, an amendment (#21, item 391) authorizing the Virginia Department of Corrections to discharge from incarceration (or move to lower supervision) those who have less than a year left on their sentence, as long as “any such discharge or placement is compatible with the interests of society and public safety.” He did not specify any further details about how the VADOC should prioritize or select which people should be released, but rather left it up to the Director, Harold Clarke.
With 65 staff members and 479 incarcerated people testing positive in Virginia’s prisons, including three deaths, it has become a critical public health crisis.
The VADOC just issued its Inmate Early Release Plan. The VADOC will prioritize based on the seriousness of the crime committed, as follows:
- Non-violent Offense
- Felony Weapons Offenses
- Involuntary Manslaughter
- Voluntary Manslaughter
- Felony Assault
- Sex Offense
Remember though, these are ALL people with less than a year left to serve on their sentence. Whether the original sentence was a 40 year sentence or a three year sentence, to be qualified for early release under this plan, you must have only one year left. So it’s somewhat irrelevant how serious the crime was—without an early release all have been deemed qualified for getting out of prison within a year. What is more relevant, but not mentioned as a matter for prioritization, is whether the individual has any risk factors of dying should he or she contract the virus.
Additionally, while the Governor merely indicated that the release must be “compatible with public safety,” the VADOC interpreted that by requiring that “Inmates must have a risk of recidivism of medium (5-7) or low (1-4), as identified by the validated COMPAS instrument, to be considered.” COMPAS—or Correctional Offender Management Profiling for Alternative Sanctions—is one of two commercial algorithms for assessing someone’s likelihood of recidivating (many jurisdictions have developed their own alternative measures).
A recent Pro-Publica article analyzed COMPAS, comparing the predicted versus actual recidivism rates for more than 10,000 criminal defendants in Broward County, Florida. They found that “black defendants who did not recidivate over a two-year period were nearly twice as likely to be misclassified as higher risk compared to their white counterparts,” while “white defendants who re-offended within the next two years were mistakenly labeled low risk almost twice as often as black re-offenders.” This means that the VADOC’s early release plan by design is skewed against black inmates being selected for early release. As if Virginia’s criminal justice system weren’t already racially biased from start to finish, now the opportunity to be protected from the health risks of coronavirus in prison will be lower for black people too.