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Expert, judge plan closer look at how NC prisons decide who to release for COVID

Thomas Maher, who has a long track record in criminal justice, expects to focus on early release resources as he advises judge.

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By
Travis Fain
, WRAL statehouse reporter
RALEIGH, N.C. — An outside expert brought in to review the state prison system’s pandemic response said Monday that he'll take a close look at how the system decides which inmates can be let out early and whether it has put the resources needed into that review.

“This isn’t meant as a criticism, because I don’t know the answer,” said Thomas Maher, an attorney brought in by Superior Court Judge Vincent Rozier as the judge decides whether to order more releases and other measures to fight coronavirus in state prisons.

“I do think that there should be always a strong examination of getting people out of prison who can safely serve their sentence or finish their sentence outside of the prison,” Maher said Monday in an interview with WRAL News and the Carolina Public Press.

“If there are people who have a good home plan, have a safe place to go, who don’t pose a risk to the community and are getting close to finishing their sentence, there should be an effort to get them out," he said, "particularly people that are at risk themselves.”

Maher is executive director of the Center for Science and Justice at Duke University and was previously head of the state's indigent defense office. He’s also a former director of the Center for Death Penalty Litigation.

He spoke for about 20 minutes Monday, sharing his thoughts as he digs into his role as Rozier’s adviser in a lawsuit brought by the NAACP and the ACLU. Those groups say the state should have been more proactive in protecting inmates throughout the pandemic.

The state has been under a preliminary injunction in the case since mid-June that orders a number of measures.
Rozier has indicated in recent hearings and orders that he’d like to see more early releases. When he ordered Maher brought in earlier this month, he also told the state to test prison staff for coronavirus once every two weeks.

In his order appointing Maher, Rozier said he was “concerned by the large numbers of individuals awaiting consideration” for early release and that that state should "allow for early release of eligible individuals to the greatest and safest extent possible."

Department of Public Safety spokesman John Bull said Monday that 771 inmates left prison early as part of the department’s Extending the Limits of Confinement program, which functions a lot like probation. Of those, Bull said 363 are still in custody, but outside prison walls.

Another 341 finished their sentences altogether, and 63 didn’t abide by the terms of their ELC and were sent back to prison, Bull said. Two have died, and two are listed as escaped, he said.

To qualify, inmates can’t have a violent record, and they generally have to have a 2020 or 2021 release date already upcoming and be at risk for COVID-19 complications due to age, health or pregnancy. Those on work release are also considered, according to the department.

The department has fully reviewed some 2,800 cases, spokeswoman Pam Walker said. Another 1,000 are somewhere in the review process, she said.

Bull said “the eligibility criteria is being re-evaluated regularly” and that DPS has a team of at least 20 people handling the reviews.

Maher said he's unlikely to work behind DPS on a case-by-case basis.

“I don’t think it’s realistic to have me going behind their review for 2,000 cases," he said. "It has probably more to do with examining what resources they’re putting into it.”

On any given day, the system houses about 30,000 prisoners, though Bull said it releases about 2,000 people in an average month as offenders complete their sentences. Twenty-eight inmates have died after testing positive for the virus.

Maher said reducing the population by just a few hundred people won’t help crowding concerns, and he called the Extending the Limits of Confinement program the "most obvious way of reducing the prison population."

The department has also reduced some sentences by being more lenient with discretionary time credits, adjusting sentences closer to minimums. As of Friday some 2,250 people had either been released or had their eventual release date moved up through that program, Walker said.

Gov. Roy Cooper could also issue clemencies, a constitutional power that gives him wide lattitude to reduce people's sentences, but he has not been willing to do that so far. Protesters have said he may be the first governor in decades to complete his first term without using a governor's power to reduce someone's sentence.

Maher said he wasn’t sure how quickly he’ll make recommendations to Rozier or how long the job will last. It is, for now at least, an unpaid position.

“I think this is a challenging and hopefully worthwhile effort,” Maher said. “As the virus is spiking, controlling it in the prison system is hard. That’s why there’s this litigation. It’s a difficult setting.”

Rozier’s order empowers Maher to speak to prison staff, and he said he’s already hearing from inmate family members and others concerned about prison conditions.

Jordan Wilkie of the Carolina Public Press contributed to this report.

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