RICHMOND — The ACLU of Virginia is calling for the quick release of any jail or prison inmate who does not pose "a demonstrable, imminent threat of bodily harm to others," in light of the threat posed behind bars by COVID-19.
Ashna Khanna, legislative director of the ACLU of Virginia, said, "We urgently need statewide action now. The actions so far from the governor and his administration do not go nearly far enough in addressing this pandemic within Virginia prisons, jails and custodial facilities."
As of Wednesday, 21 prisoners – five now hospitalized – and 21 staff at Virginia correctional facilities have tested positive for the virus. In addition, at least one youth at the Bon Air Juvenile Correctional Center in Chesterfield County and a resident of the Virginia Center for Behavioral Rehabilitation in Burkeville have tested positive.
Advocacy groups have asked the state and local officials to release elderly inmates and those suffering from serious medical conditions and believed most vulnerable to COVID-19. They requested release of the elderly and informed for their protection and to help make room for more social distancing by remaining prisoners.
The administration of Gov. Ralph Northam has taken some steps to get prisoners out, but critics, including the ACLU of Virginia, contend far more can and must be done to avoid a serious COVID-19 problem behind bars.
Officials have cited a 2016 ruling by the Virginia Supreme Court that could impede the use of gubernatorial clemency to release a class of offenders without considering each inmate individually. The court shot down former Gov. Terry McAuliffe’s executive order restoring voting rights to 206,000 felons, ruling that every case has to be considered on an individual basis.
Claire G. Gastañaga, executive director of the ACLU of Virginia, said Thursday, "The governor has complete discretion to exercise his clemency authority as he chooses to."
"The one limitation that one might read into the case involving restoration of rights is that he needs to make individualized decisions. But if Gov. McAuliffe could make 176,000 individualized restoration decisions in about a six-month period, it seems to us . . . the governor is well within his authority and has the ability to grant clemency and conditional pardons," she said.
The governor’s office did not immediately respond to a request for comment Thursday.
The ACLU joined with dozens of other organizations to form the Virginia COVID-19 Justice Coalition that held a press conference Thursday in which other advocacy groups and some Commonwealth’s attorneys participated.
Joseph Platania, commonwealth’s attorney for the city of Charlottesville, said prosecutors there and in Albemarle County, along with judges, court clerks, defense attorneys, law enforcement partners and the superintendent of the local jail, "have undertaken aggressive and proactive measures to release 113 individuals from custody."
The moves have reduced the jail population from 421 to 308 in less than a month, Platania said, adding that only one released inmate has been brought up on a new charge and it is for a non-violent crime.
The ACLU and other groups have complained that many jurisdictions in the state are not taking similar actions endangering jail populations. Groups are calling for the Northam administration to lead a uniform statewide response.
Fairfax County Commonwealth’s Attorney Steve Descano echoed their calls, saying, "I demand that our state officials show the leadership necessary to standardize Virginia’s legal response to COVID-19."
Valerie Slater, executive director of RISE for Youth, said her group is calling for judges and prosecutors to review the cases of incarcerated youth from their jurisdictions and allow for community placement for all juveniles who pose no threat to others and has a safe location to shelter in place within the community.
Jayln Midgette, the 18-year-old daughter of a prisoner at the Buckingham Correctional Center, said she has been unable to see her father in recent weeks because of visitor restrictions. She fears for his safety.
"Imagining him getting the virus is really upsetting to me because what if he dies and I never see him again?" she asked. "There is a possibility he can come home soon but not soon enough. It would serve no justice if he were to die . . . he wasn’t sentenced to die."
Meanwhile, the ACLU in New York has launched a television ad campaign urging federal, state and local officials to release elderly and medically vulnerable people from prisons and jails, with Richmond being one of four "key political markets" to see more ads on Sunday.
The ACLU said that since the pandemic’s start, it and its state affiliates have filed more than 15 legal actions related to detention centers, prisons and jails. Since these efforts started, more than 10,000 inmates have been freed from prisons and jails.
A press release says: "The six-figure ad buy, launching today and running through next Wednesday, involves two ads. One features a woman pleading for the release of her sister Elaine, a woman with diabetes in prison . The other ad is a joint effort with the Union Theological Seminary and appeals to religious and moral principles, in the effort to save the lives of medically vulnerable and elderly people whose sentences are putting them at risk . The ads will air on MSNBC, CNN and FOX News for a week, and all of the key Sunday shows this weekend, in the key political markets of Washington D.C., Hartford, Conn., Oklahoma City, and Richmond, Va."