Florida prisons boss can’t release inmates amid COVID-19. But can he furlough them?
As cases of COVID-19 among inmates and staff in Florida’s crowded state prisons climb to 507 and 184 respectively, advocates and families of inmates have been pushing for the state to take some sort of action.
According to UCLA’s COVID-19 Behind Bars tracking project, 13,971 state prison inmates across the country have been released to mitigate the spread of COVID-19 in the often crowded and understaffed facilities. Kentucky, for example, commuted the sentences of 1,000 nonviolent offenders. Illinois released six mothers and babies. Virginia released 62 nonviolent inmates with less than a year left of their sentence.
But Florida has hardly released anyone — just three people on “conditional medical release.”
The main reason is because Department of Corrections Secretary Mark Inch does not hold the authority to release inmates.
But what if he furloughed them instead?
In a letter to Inch from Greg Newburn, Florida director of the prisoner rights organization FAMM, the organization proposes the FDC use a relatively obscure administrative rule that gives the department authority to furlough inmates, allowing them to leave the facilities for a set amount of time.
According to the rule, so-called “Type A” furloughs are meant for inmates to either visit a dying relative, attend the funeral of a relative or, notably, for any other reasons “deemed consistent with the public interest, including medical or mental health treatment, attendance at civil hearings, or to otherwise aid in the rehabilitation of the inmate.”
“They have been saying their hands were tied,” Newburn said in an interview Thursday. “We are just trying to say that they’re not.”
In the letter, he wrote that the department can temporarily release inmates into the care of a qualified sponsor and that FAMM, which once stood for Families Against Mandatory Minimums but has expanded its portfolio, urges the department to do so.
Newburn emphasized the lack of resources the department has, and that the finite resources should be spread among a smaller population. For instance, more than 2,000 staffers of the already understaffed facilities have been self-quarantined at home, and testing of inmates is only now starting to ramp up.
“Furloughs can ease the pressure on the system,” he said. “Of the 93,000 people incarcerated in Florida, there has got to be some percentage that can be safely furloughed and then bought back once things are clear. ... if you can protect people by sending them home, you don’t have to care for them inside.”
The intent of the rule, according to the state, is five-fold:
▪ Easing the transition from prison back to the community.
▪ Seeking employment that may be retained after the inmate is released from the facility.
▪ Helping determine the inmate’s readiness for release.
▪ Preserving family and community ties.
▪ Permitting the inmate to develop or maintain occupational skills.
Inch said in a statement to the Herald last month that releasing an inmate is a “complex process” that involves a proper post-release plan for medical services and housing options that can take months of planning ahead of release.
“For these reasons, I believe accelerated early release creates significant risk,” he wrote. “As secretary, I promise to remain diligent and focused on doing all I can to protect those who work and are housed in our correctional institutions.”
Karol Lukin, a criminal justice professor at the University of Central Florida, said with the rule’s intent taken into consideration, the furlough rule doesn’t seem applicable.
“Generally, furloughs are granted for a day, as in the case of a funeral, or a weekend, or for a week. I doubt the argument can be made that COVID relief can occur in such a short period of time,” she wrote in an email.
She said while laws and administrative rules are always subject to creative interpretation and application, especially in times of crisis, FAMM could find a more effective argument somewhere else in the law, like the Eighth Amendment, protecting against cruel and unusual punishment.
“But that would no doubt take too long to run through the courts,” she wrote.
Kenneth Adams a criminal justice professor at University of Central Florida, said furloughing inmates may put the safety and security interests of the department and the community at odds.
The release of inmates may be in the best interest of the department, he said, but the increased fear of crime and violence among the citizenry is less than ideal. The situation poses many questions about which environment is better at providing safety and medical treatment for infected inmates.
Inmates with serious or life-threatening COVID-19 illnesses could be considered specifically for medical release, he noted.
Sumayya Saleh, a Tallahassee-based staff attorney at the Southern Poverty Law Center, said furloughs are an option to help mitigate COVID-19 in Florida’s corrections system, which she noted has much less unilateral power than system’s in other states to release inmates.
Regardless of its authority on releases, the department has a responsibility to think creatively about how to protect people housed inside, she said.
And while furloughs haven’t been used in this way before, she said, “this is an emergency situation that requires an emergency response.”
This story was originally published May 8, 2020 at 9:00 AM.