Editor's Note: This story was updated January 20, 2021 to clarify a quote from New Jersey Assembly member Christopher DePhillips.
Nearly every day, Jan Salvay checks for her nephew’s name on the Nevada Department of Correction’s website: Nicholas, 39, jailed in a credit card forgery case. Then she checks the state’s list of deaths in custody—just to make sure his name isn’t there.
“He’s ... scared he’s going to get sick, and he’s going to die,” Salvay said.
When she last visited him, in February at a work camp, he was expected to be released in time to vote in the general election. Not long after that visit, he was transferred to a regular state prison because of an illness; then the pandemic hit and work camps closed.
“Then the [release] delays started. They explained, ‘We had to stop the work programs. So now you’re not getting those days off from your sentence,’” Salvay said, summarizing one of many calls she’s made to the corrections department. “I felt like that doesn't seem right.”
By mid-December, the online portal had a release date of Jan. 14. By the start of the new year, it changed to Jan. 20. Last week, five more days were added. “Not surprised, but definitely disgusted,” Salvay said in a text. She called the state’s family services line to explain that Nicholas had already signed discharge papers. The woman who answered put Salvay on hold, then said they changed the date back to Jan. 20. “Huge relief; I cried when she said it,” Salvay texted this time.
In Nevada, 40 people have died of COVID-19 in prisons, and more than 2,900 have tested positive for the disease.
The COVID-19 infection rate in prisons is four times higher than that in the general U.S. population. Yet even as family members, incarcerated people and advocates urge states to release who they can in order to reduce deaths, some states have gone in the opposite direction—keeping incarcerated people from taking advantage of early release programs.
In at least half the states, incarcerated people can have time taken off their sentence by working, getting educational degrees or completing programs such as drug and alcohol rehabilitation, according to research by the National Conference of State Legislatures. Sometimes programs or work are required as part of a sentence.
Several states have distributed time credits in other ways to make up for lost programs. California and New Jersey have even increased time credits because of the coronavirus.
As the pandemic stretches on, though, with some states hesitant to administer vaccines to incarcerated people before other groups, advocates say states could make better use of systems allowing “good time” credits to reduce prison populations.
“We are calling on states to, rather than letting good time fall to the wayside, take good time and leverage it,” said Wanda Bertram, a spokesperson for Prison Policy Initiative, a criminal justice think tank based in Northampton, Massachusetts. “First because it's fair, and second because it will let more people get out of prison now.”
But the policies aren’t popular with some law enforcement officials and lawmakers, who argue incarcerated people should serve the sentence they’ve been dealt, COVID-19 risks or not.
Steps Forward, Steps Back
Daniel Smith doesn’t want to turn himself in to county jail.
He doesn’t fear the 60-day sentence at Pottawattamie County Jail in Iowa for a parole violation, he said. He’d handle that. What he fears is the coronavirus.
“Do I turn myself in and deal with the increased chances of getting COVID,” Smith, 37, asked in a recent phone interview, “or do I not turn myself in and take the chance of getting myself in trouble?”
The coronavirus has sickened nearly 300,000 people in state prisons, and more than 1,900 who tested positive have died, according to The Marshall Project and The Associated Press, which jointly collect data on state corrections facilities. Data on cases in county facilities is sporadic.
On March 16 of last year, when the Trump administration announced a plan called “15 Days to Slow the Spread,” state officials made efforts to minimize congregate settings, including in jails, according to Anna Harvey, director of New York University’s Public Safety Lab and a co-author of multiple jail population studies for the National Commission on COVID-19 and Criminal Justice.
Through the end of April, jail populations dropped by 30% from a combination of releasing incarcerated people early and fewer new admissions. “It seems like the jail populations responded to this clear national set of policy guidelines,” Harvey said.
But as state officials loosened coronavirus-related restrictions during the summer, jail populations began to creep up again. By September, jails regained half of the people lost, she said.
A similar trend was documented in state and federal prisons, according to the Prison Policy Initiative.
All along, some law enforcement officials and lawmakers have resisted moves to reduce incarcerated populations.
In April, after a state order set a new zero-bail policy for most misdemeanor and low-level felonies, Fresno County, California, Sheriff Margaret Mims said in a video on the office’s Facebook page, “This is gonna set us back. This is gonna mean more crimes.” (The zero-bail policy ended in June.)
In December, Todd Spitzer, the Republican district attorney in Orange County, California, criticized a court ruling to cut the county jail population in half. In a statement, he said the ruling “will release dangerous and violent criminals back into our neighborhoods to commit more crimes and victimize more people.”
“Nothing, not even a pandemic suspends the rule of law,” he said.
Letting People Go
In Nevada, Jodi Hocking started a Facebook group in August for people concerned about incarcerated loved ones during the pandemic. She called it “Return Strong.” It has grown to more than 370 members and works with the ACLU of Nevada. Hocking and other members have called for better conditions in prisons and compassionate release, a process of releasing ill people from prison early.
As of November, the state Department of Corrections said only two of nearly 14,000 incarcerated people qualified for compassionate release on the basis of susceptibility to COVID-19 and other factors, according to The Nevada Independent, which reported it was not clear whether those two had actually been released.
Return Strong has received letters from 320 people in Nevada’s prisons. Like Salvay’s nephew, many say they are not receiving credits they expected and are having release dates pushed back.
“Many people are sitting there,” Hocking said, “and every month they are losing time.”
The Nevada Department of Corrections did not provide information by publication time on how the inactive programs are affecting sentence lengths. The office of Democratic Gov. Steve Sisolak did not respond to requests for comment.
State Assemblymember Rochelle Nguyen, the Democratic vice chair of the Judiciary Committee, said she reached out to the Nevada Department of Corrections to learn what was going on after an interview with Stateline.
“I have heard firsthand accounts of how people were completing programming and programming is not available because of COVID, and now they are not getting that additional good time credit,” she said.
Program issues have cropped up in other states.
The New Hampshire Department of Corrections increased time credit opportunities in December. But at the New Hampshire State Prison for Men, there has been a delay with a drug treatment program called Focus, according to the Department of Corrections. This delay affects, among others, Clayton Whitten, who could get six months off his sentence, which currently ends in September 2022.
“He’s got to complete the program he can't get into,” said his mother, Jodie Manuel, in an interview.
In July, thousands of people were waiting for parole in Texas because of delayed pre-release programs, The Texas Tribune reported. Program transfers began again in August, Jeremy Desel, a spokesperson for the Texas Department of Criminal Justice, said in an interview. “There was a backlog for some programs, but there no longer is.”
At least two states, California and New Jersey, have doled out more time credits because of the pandemic.
In August, California applied 12 weeks of credit to people who had no rules violations. The credits were provided “to help offset not only credits not earned due to program suspensions, but also to recognize the immense burden incarcerated people have shouldered through these unprecedented times,” wrote spokesperson Alia Cruz in an email.
More than 7,000 incarcerated people had their release date moved up by an average of 86 days, she said.
In New Jersey, Democratic Gov. Phil Murphy signed a law in October that gave some incarcerated people time credits under the public health emergency, which led to a release of at least 2,000 people.
Republican Assemblymember Christopher DePhillips, a Judiciary Committee member who voted against the measure, said he took issue with the fact that some people convicted of serious felonies could benefit.
“I didn't think it was good public policy to allow violent criminals to be released early under the guise of COVID,” DePhillips said in an interview.
In Delaware, state Rep. Melissa Minor-Brown, a Democrat, filed a bill in December that would award six months of credit toward every month served during the public health emergency, with a maximum sentence reduction of one year. The bill is scheduled to be heard in the House Corrections Committee.
Committee member Rep. Ruth Briggs King, a Republican, said she is concerned with the idea of undoing sentences set for individuals during the judicial process.
“We have a process for good time behavior already in the state,” she said. “But this [bill] isn't saying you have to earn this credit, it's saying because you were here during this time you're getting this, if you will, gift.”
Other states have modified programming in response to the pandemic.
In Rhode Island, where people who are incarcerated can earn up to two days a month for working and up to five days a month for participating in certain programs, most of the programs have moved from in-person to remote, allowing good time credits to continue, according to spokesperson J.R. Ventura.
In Arkansas, the corrections department started mailing instructional material to participants in the GED or vocational certificate program, according to spokesperson Cindy Murphy. Completing the programs can earn participants up to 180 days of good time.
In Vermont, facilities have been in a modified lockdown since March. The corrections department gave every incarcerated person an electronic tablet to access a library, participate in virtual programs and communicate with friends and family, said Rachel Feldman, a corrections department spokesperson.
“We know that COVID is not easy, and it is not easy to deal with while incarcerated. We want to make sure people do not feel that this is a punishment,” Feldman said. “COVID is not a punishment. COVID affects all of us.”
In Casa Grande Transitional Housing in Nevada, resident Shawn Miller feels the effects of the pandemic.
Casa Grande is a facility for 400 people within 18 months of their parole eligibility date. Miller, jailed on a drug trafficking charge, has a release date of Sept. 19. Typically, residents can leave the site to work during the day. In a letter to Stateline, Miller wondered why residents haven’t been released on parole.
“We have been on lockdown since I got here in July 2020,” Miller wrote on Dec. 22. “The COVID here at Casa Grande is so bad right now. Over 100 people at the facility have it and are quarantined in another unit. It’s really scary.
“Honestly,” he wrote, “I think we will all get it here.”