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1 April 8, 2020 Honorable Chief Justice Stuart Rabner Supreme P.O. Box 32159 ALEXANDER SHALOM Newark, NJ 07102 Senior Supervising Attorney and Director of Supreme Court Advocacy Tel: 973-642-2086 Fax: 973-642-6523 973-854-1714 [email protected] [email protected] www.aclu-nj.org April 8, 2020 Honorable Chief Justice Stuart Rabner Supreme Court of New Jersey R.J. Hughes Justice Complex 25 W. Market Street Trenton, New Jersey 08611 Re: In the Matter of the Request to Modify Prison Sentences, Expedite Parole Hearings, and Identify Vulnerable Prisoners Honorable Chief Justice: As the Court is aware, on March 19, 2020, Public Defender Joseph Krakora sent a letter seeking the Court’s consideration of an Order to Show Cause designed to suspend or commute county jail sentences. After ordering the parties to engage in mediation, we reached an agreement, and on March 22, 2020, you signed a consent order (the “Order”) that set forth a mechanism that led to the release of nearly 700 people serving relatively short sentences in the county jails. On behalf of both the American Civil Liberties Union of New Jersey and the New Jersey Office of the Public Defender, we write in hopes that the Court will consider a second Order to Show Cause. This one addresses the release of certain individuals serving sentences in state prisons and juvenile facilities. We recognize that this second request is as unusual as the first. However, this request is made to address the extraordinary circumstances currently unfolding in the State’s prisons. Both this Order to Show Cause and the one that the Court has already granted remain necessary to address the calamitous effect on public health caused by the novel coronavirus, COVID-19. The extraordinary relief proposed herein is well within the Court’s authority to grant. In the almost three weeks since Public Defender Krakora’s letter, the situation in New Jersey’s correctional facilities has become even more dire. What seemed likely at that time—that COVID-19 would reach our correctional facilities, spread quickly, infect incarcerated people as well as professional and civilian staff, and lead to preventable infections and even deaths—has become a tragic reality. Indeed, in Hudson County’s jail alone, 22 detainees and 41 employees have tested positive for the virus, and, sadly, three employees have already died.1 1 Teri West, Among Hudson County jail employees and inmates, 63 coronavirus cases and another fatality, The Jersey Journal for NJ.com, (April 6, 2020), available at 1 Horrific as the spread has been in our prisons and jails, we know that without bold and immediate action, things will only get worse and many more people will die. In fact, in the twenty days since Public Defender Krakora’s letter, the number of New Jerseyans who have died from the virus has grown exponentially from 3 to 1,232, and the number of positive cases has gone from 427 to 44,416, with those numbers increasing by the hour.2 Without additional mitigation efforts, our state prisons (which have already been affected3) will experience similarly staggering rates of infection and death. For that reason, we again seek the Court’s intervention. In this application, for which we again respectfully request a relaxation of the rules to allow for direct filing with the Court, we seek relief for three principal groups of incarcerated people: 1) any individual whose sentence is set to expire in the next year; 2) any individual who is already eligible for parole; and 3) any individual at particular risk of death should he or she contract COVID-19. As to each group, we seek only limited relief from the Court. INDIVIDUALS WHOSE SENTENCES ARE SET TO EXPIRE IN THE SHORT TERM This Court’s prior Order to Show Cause addressing the threat of COVID-19 to our criminal justice system focused on low-level offenders who were certain to be released within the next year, many of whom are housed in county jails. As this Court is undoubtedly aware, however, there are other low-level and mid-level offenders who are serving sentences in state prisons and juvenile facilities. Everyone in this group has a maximum sentence expiration date within the next year. In other words, regardless of the existence of COVID-19, these individuals are set to be released in the next twelve months. This is the first class of people for whom we seek relief. Excluded from this group are most people convicted or adjudicated of offenses subject to the No Early Release Act, N.J.S.A. § 2C:43-7.2. Additionally, as with the previously entered consent Order, we propose a mechanism whereby prosecutors would have the ability to object to release where a particular and demonstrable risk to public safety exists. We estimate that there will be fewer than 2,000 people who could potentially obtain relief under this portion of our request. We believe, and should the Court require full briefing, we are prepared to argue, that the Court possesses “the inherent power . to reduce or change a sentence at any time,” for a designated set of reasons. State v. Priester, 99 N.J. 123, 133 (1985) (quoting State v. Robinson, https://www.nj.com/hudson/2020/04/among-hudson-county-jail-employees-and-inmates-63- coronavirus-cases-and-another-fatality.html 2 New Jersey Department of Health (April 7, 2020), available at https://www.nj.gov/health/ 3 Confirmed COVID Cases at the NJDOC, New Jersey Department of Corrections (April 7, 2020), available at https://www.state.nj.us/corrections/pages/COVID19Updates.shtml (noting that there are already 72 confirmed cases within our prisons, with staff making up 67 of those cases). 2 148 N.J. Super. 278, 283 (App. Div. 1977). Among these reasons, as set forth in Rule 3:21-10, is “the release of a defendant because of illness or infirmity of the defendant.” R. 3:21-10(b)(2). The Rule thus authorizes release, with no time limit, for individuals who cannot receive adequate care within prisons. See Priester, 99 N.J. at 135-136. That is exactly the case for every person currently living through the COVID-19 pandemic in prison, where social distancing is simply impossible, basic sanitary protocols remain unattainable, and appropriate medical intervention and treatment for seriously ill patients is virtually non-existent. It is true, of course, that the people in this class may have not yet contracted the coronavirus.4 But they are physically infirm, and therefore fall within the exception to the general time limit on sentence modifications. That is, there is a frailty in all incarcerated people’s health by virtue of the very conditions of their imprisonment. Without social distancing, the basic tools of sanitation, robust testing, and sufficient treatment—which are currently unavailable in prisons—many of them are likely to die. One way to dramatically lessen the likelihood of this occurring is to reduce the number of individuals in prison: in other words, to allow for the social distancing in prison that Governor Murphy mandated through his recent Executive Order and that all other New Jerseyans are currently expected to practice. This is exactly the sort of situation that R. 3:21-10(b)(2) should contemplate and address: a circumstance where a defendant’s health risks changed after sentencing—through no fault of their own—and where the prison cannot provide the life-saving precautionary treatment and care that the defendant could obtain outside of prison. Although we believe release under these circumstances is permissible under the Rule, should the Court disagree, it is, of course, free to amend or relax the Rule in the interest of justice. R. 1:1-2. Insofar as courts also consider the nature and seriousness of the crimes for which defendants were convicted, we do not seek relief through this Order to Show Cause for anyone convicted of the most serious, violent crimes. Because courts must consider the risk a defendant might pose if released early, we propose a mechanism for prosecutors to interpose objections. And because we acknowledge that the sort of mass release that we call for in this Order to Show Cause, and that the health crisis requires, might strain New Jersey’s housing and reentry resources, we are prepared to work with stakeholders to develop strategies to address these critical issues should the Court issue the Order to Show Cause and/or mandate mediation. INDIVIDUALS ELIGIBLE FOR PAROLE The next class of individuals for whom we seek relief are those who are currently eligible for parole and those who, while eligible, have recently been denied parole by the Parole Board. 4 To our knowledge, testing of prisoners has been extremely limited even for those exhibiting symptoms. See, e.g., Blake Nelson, Coronavirus spreads in N.J. prisons as inmates and officers say state is risking their health, NJ.com, (Apr. 4, 2020), (reporting that only 10 prisoners had been tested, and one recently released prisoner who tested positive would not be counted in DOC statistics); Lee Brown, NJ inmate with coronavirus symptoms left ‘basically for dead’, NYPost.com, Apr. 6, 2020 (describing prisoner with COVID-19 symptoms who had been quarantined, but not tested). 3 On March 30, 2020, Public Defender Krakora sent a letter to the Chairman of the State Parole Board, Samuel Plumeri (Exhibit A) in which he sought prompt review of parole decisions impacting, among other groups: 1) elderly prisoners and other prisoners at high risk of death from COVID-19 who are parole-eligible and for whom parole consideration could be expedited; and 2) prisoners denied parole within the last year whose denial could be reconsidered by the Board, given the magnitude of the current public health crisis.
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