Florida used to confine its road-gang prisoners in old wooden barracks that it intended to replace sooner or later. On July 16, 1967, that became too late for 38 men who died when flames swiftly devoured one of those firetraps in a remote corner of the Panhandle. Only 13 inmates were saved.
No one in authority had wanted that, but indifference can be just as deadly as intent.
That long-ago tragedy comes to mind with the recent news that COVID-19 has killed 154 Florida prison inmates. That’s second, but not by much, to the 161 deaths in Texas.
Texas, however, has about twice as many prisoners, giving it a lower death rate. Its rate of coronavirus infections also is slightly lower, according to data from the Marshall Project. Florida’s 16,483 infections are virtually the same total as in the federal prison system, which houses nearly twice as many inmates.
Florida prisoners are being infected and dying at dramatically higher rates than Florida’s overall population — more than four times higher as to infections, half again as great as with deaths. That’s despite the Department of Corrections isolating those who are ill and enforcing the masking and social distancing provisions recommended by the Centers for Disease Control. Prison employees are at greater risk also. The 1,313 infections reported among officers and others represent a rate more than three times higher than that of Floridians generally.
It’s another example of lethal indifference. Prisons are such efficient incubators of an airborne epidemic that the first line of defense against the deadly coronavirus should be to release as many inmates as safely possible. The ideal candidates would be those who have served most of their sentences or who committed nonviolent crimes and pose little danger to society.
Some states are trying to reduce their prison populations on account of COVID-19, but not Florida. The Department of Corrections has no authority to release inmates before their sentences expire. However, there are others who could.
Those people are Gov. Ron DeSantis and the Cabinet, who comprise Florida’s pardon board. They have unlimited clemency powers. With minimal effort, they could commute many sentences to time served and relieve the health crisis in the prisons.
Only the governor can initiate clemency — the Cabinet’s role is to approve or disapprove — but DeSantis appears indifferent to the unique threat that the coronavirus has created in prisons.
The infection and death statistics are startling, but not surprising. It would be hard to imagine any setting, other than a nursing home, as vulnerable to the coronavirus. Housing conditions are crowded, social distancing is difficult, medical care is spotty, and the inmate population is getting older due to a long-term trend toward longer sentences.
Moreover, the prisons aren’t air conditioned, a policy owing as much to the Legislature’s thirst for punishment as for any presumed economy. Considering Florida’s climate, captivity in close quarters in buildings designed more for security than for ventilation is cruel and unusual punishment. Without air conditioning, there is no practical way to filter out the virus.
The Commission on Offender Review — formerly, the Parole Commission — can approve conditional medical releases. Those are limited, however, to inmates who are terminally ill or permanently disabled. So far this year, the commission has granted only 26 requests while denying 23.
The federal prison system, which answers to the Justice Department and ultimately to President Donald Trump, is even more callous. According to the Marshall Project, wardens approved only 156 of 10,940 compassionate release requests from March through May. Overseers in Washington then overturned 73 of them.
The COVID-19 situation in Florida prisons would be worse but for a surprising silver lining. There are fewer prisoners — 81, 956 as of Oct. 22 — than at the close of the last fiscal year on June 2019, when there were nearly 14,000 more.
Counties sent fewer inmates during July-September than during the same period last year. And county jails themselves report having 16.7% fewer inmates.
A major reason, according to Gordon Weekes, chief assistant public defender in Broward County, is that police are taking fewer nonviolent offenders to jail. They’re writing summonses instead.
And that’s good. Anything that reduces the need for people to post cash bail benefits society. People who can’t afford bail, Weekes points out, are prone to questionable decisions. Sometimes they plead guilty when they’re innocent, just to get out of jail sooner and get back to their jobs or families.
Carey Haughwout, the public defender in Palm Beach County, believes that police are making fewer arrests overall as one means of protecting themselves from the virus. Both offices noted that the prison system has limited capacity in its transfer buses on account of the virus, which accounts for some of the reduction in admissions.
So much more should be done.
In New Jersey, the Legislature in August voted to allow the release of more than 3,000 people who are within a year of completing their sentences. That could be as much as 20% of the prison population, according to the Equal Justice Initiative, a prison reform nonprofit. In California, which had a severe outbreak at San Quentin, the governor ordered the release of up to 8,000 inmates.
Florida should take the coronavirus crisis as a second opportunity to test the potential of selective early release on crime and recidivism. Among other things, it might show that it was a grave mistake to abolish parole.
The first opportunity came in 1973 with the U.S. Supreme Court’s landmark ruling in Gideon v. Wainwright, the appeal from Florida that required public defenders for felony defendants who could not afford their own counsel. On that account, more than 1,000 Florida convicts — roughly 10% of the population at the time — were released early. The prison system compared their subsequent behavior to that of inmates released during the same time period only after they had served their full and longer terms. The so-called Gideon group returned to prison at about half the rate of the others.
That recidivism study was limited by a relatively short time frame and by the use of only Florida’s own data. Even so, it called into serious question Florida’s policy of relying on punishment, as expressed in sentence length, as either a practical or economical deterrent to crime.
That lesson was forgotten by the 1980s, as Florida’s politicians exploited rising crime rates by competing to see who could crack down the hardest with minimum-mandatory sentences, abolition of parole and other harsh measures. In so doing, rehabilitation was shoved to the curb.
“We operate under a punishment code, not a rehabilitation code,” says Weekes, who will succeed Broward’s Public Defender Howard Finkelstein in January.
That is unaffordable both for its human toll and its burden on taxpayers.
America locks up people at the world’s highest rate. Among every 100,000 of our people, 655 are in jails or prisons. Counting those in local jails as well as prisons, Florida’s rate is even higher: 784 per 100,000. Nationwide, the highest rates are in the South, a fact rooted in post-Reconstruction racism, but disparity permeates the entire nation.
The coronavirus is a new call to the nation’s conscience. It should be taken as an opportunity for reform, rather than another occasion for indifference.
©2020 Sun Sentinel (Fort Lauderdale, Fla.)