“Sitting Ducks:” Amid COVID, Pot Sentences Can Kill

By Hilary Corrigan
Aug 11, 2020

As the coronavirus pandemic rages on, it poses a unique threat to prisoners—including those locked up for nonviolent, cannabis-related offenses.

Since the pandemic began, activists have been calling for officials to release some prisoners, including those convicted of nonviolent drug offenses and those considered the most vulnerable due to age and health conditions. They have also called for reducing arrests and not pursuing technical violations of probation and parole, to further reduce the prison population. But those who work on the issue say there have been far too few releases at all levels.

Since the spring’s protests, the cannabis industry has also become more vocal about equity and racial justice issues, as it generates billions in revenue from the same work that has sent many to prison. But so far, the results in terms of released prisoners have been paltry.

Prisons are COVID hotspots, where the virus can easily spread through close contact in a population that includes older people and those in poor health. Social distancing is impossible, staff move in and out and advocates complain the sites already lack adequate medical care and equipment. 

Some groups saw an obvious solution in long-sought bids to free non-violent drug offenders while thinning out the prison population in an effort to curb the virus’ spread.

Congress has the discretion to order the Justice Department to depopulate federal facilities, said Maritza Perez, director of Drug Policy Alliance’s office of national affairs. And Congress could provide incentives to states to depopulate state prisons.

“That just hasn’t happened,” she said.

“It’s been months”

To stop the spread, prisons need to be at 85% or less of capacity. But across federal, state and local prisons, “There have been very, very few releases,” she said.

When the pandemic started, Perez said Congress started to address the issue with legislation that included provisions for depopulating prisons, plus calls for U.S. Attorney General William Barr to consider releasing vulnerable prisoners. Since then, “We’re at a standstill,” Perez said of stalled negotiations in Congress and stalled legislation.

“It’s been months. The DOJ has been dragging its feet,” Perez said, and Congress has stayed silent. She called the situation “really frustrating and really unfortunate.”

“They hold the power of the purse,” Perez said, noting that legislators could also ensure prisons have necessary PPE and resources. “I don’t think people care about incarcerated people. I think it’s as simple as that.”

Perez said it may be more effective to push for local-level changes, rather than federal ones—the way different states and municipalities quickly adopted police and cannabis reform measures. She called for the public to pressure their local and state lawmakers to act on prison reform.

“Inadequate response”

The nonprofit Last Prisoner Project estimates about 40,000 people are currently incarcerated in the U.S. on cannabis-related offenses. LPP launched last year, co-founded by Steve DeAngelo of Oakland-based dispensary chain Harborside, and his brother Andrew DeAngelo, a longtime cannabis activist.

Many of those prisoners are in local jails and the group notes releases from those facilities have helped save lives. But during the pandemic, there’s a risk of “a cannabis sentence becoming a death sentence,” LPP executive director and general counsel Sarah Gersten said in an email. “We are seeing a completely inadequate response from state prisons and the [federal Bureau of Prisons].”

The non-profit Prison Policy Initiative has tracked prison populations through the pandemic. It noted that some jail populations had dropped quickly at the start of the pandemic, as local authorities took different actions. For instance, police issued citations instead of arresting people, or prosecutors declined to charge people for low-level offenses, or courts reduced cash bail amounts and jail administrators released those awaiting trial or serving short sentences for nonviolent offenses.

But local authorities have not sustained those efforts and populations have risen since the beginning of summer. Earlier this month, the group reported that 71% of the 668 county jails it has tracked showed population increases from May 1 to July 22. And state prisons “have been much slower to release incarcerated people.” The typical state prison system had reduced its population by about 5% in May and 13% by the end of July.

States mostly “are not even taking the simplest and least controversial steps,” the report states. Those include refusing admissions for technical violations of probation and parole rules, or releasing people that are already confined for those same technical violations. Other “obvious places to start” include releasing people near the end of their sentences, those in minimum security facilities and on work-release, and those who are older or have medical conditions, the report says.

“Decision- and policy-makers need to recognize the dangers of resuming unnecessary jail incarceration during the pandemic,” the report states. “Just as many states are seeing the tragic effects of ‘reopening’ too soon, counties and cities that allow jail populations to return to pre-pandemic levels will undoubtedly regret it.”

“Sitting ducks”

There have been some success stories.

Cannabis author, educator and chef Cheri Sicard—an advocate for prisoners incarcerated on cannabis-related offenses—credits activism and public outrage for leading to the release of Craig Cesal

Now 61, the non-violent, first-time offender was sentenced to life without parole nearly 20 years ago on a marijuana conspiracy offense. A diabetic, the Bureau of Prisons approved his release from Federal Correctional Institution Terre Haute in Indiana to serve his sentence from his home due to COVID and the associated risk from his health conditions.

“That kind of grassroots activism can work,” Sicard said. Although she notes Cesal’s sentence hasn’t changed and he could be sent back to prison.

Sicard has worked with cannabis prisoners for about a decade. She now focuses on nine of them—all in federal prison on cannabis-related offenses, with life sentences or de facto life sentences.

“They all know they’re sitting ducks in a petri dish,” Sicard said of the pandemic.

She points to different avenues to release cannabis prisoners—including through governors’ actions, through existing federal law’s expanded compassionate release provisions and through the U.S. President’s ability to offer clemency.

“The sooner somebody acts on this, the better,” she said.

Meanwhile, in Michigan, Attorney General Dana Nessel this month wrote a letter to Gov. Gretchen Whitmer, calling to commute the rest of Michael Thompson’s prison sentence. Thompson’s case has gained widespread attention, especially during the pandemic as he’s now being treated for COVID.

Thompson, 69, of Flint, was sentenced in 1996 to serve 42 to 60 years for offenses related to selling cannabis to an undercover police informant. A press release from the AG’s office notes that Whitmer has the power to approve commutations, reducing a sentence.

Nessel called for releasing him as soon as possible, noting such sentences are “usually reserved for second-degree murder convictions or for particularly heinous rape cases.”

“Methods that work”

In March, the pandemic’s early days, Law Enforcement Action Partnership—a nonprofit of criminal justice professionals that advocates for drug policy and criminal justice reforms—called for releasing more inmates from local, state and federal incarceration to thin out that population and limit the spread. The group’s main concern was the inability to enact social distancing in jails. LEAP specified those with minor offenses and those at the end of their sentences. 

LEAP also recommended a halt to arrests for minor offenses like marijuana possession, said LEAP member Jim Manfre, retired sheriff of Flagler County, Florida, and former investigator and assistant district attorney in New York. The group also urged judges not to set bail for minor offenses like possession, since many offenders can’t pay and wind up in jail awaiting trial delayed by COVID. Instead, pre-trial release programs could ensure people return for their trials, the group suggests.

Manfre said the response has been inadequate. He stressed the urgency now, with COVID, for releasing prisoners such as those with marijuana-related non-violent misdemeanors.

“How anyone is sitting in jail for marijuana is just beyond me,” Manfre said.

“There’s no excuse for it not happening because there are methods that work, there are best practices,” he said. “If you’re not acting as a sheriff or a county official, you are being negligent.”

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