Some states have failed to protect prison inmates from COVID. Minnesota is one of them

Months ago — even before the full scope of the COVID-19 pandemic became clear — experts urged states and the federal government to thin out prison populations before terms of incarceration became death sentences.

The very nature of prisons, after all, prevent social distancing and other measures that slow viral spread, creating a perfect storm for mass infections.

In too many places, the warnings went unheeded and the results have been tragic. Unfortunately, Minnesota was one of those places.

Across the nation, more than 1,000 prisoners have died of COVID and more than 100,000 have been infected. In Minnesota, more than 560 people in our prisons have contracted COVID, and two have died. Our positive case number per prisoner is higher than those in states whose criminal justice and corrections systems are among the most punitive, including Alabama, Mississippi, Oklahoma and West Virginia, and three times higher than New York's.

Our neighbors South and North Dakota have registered just five and 11 total cases in their prisons, respectively.

While it certainly could have been worse, we could have and should have done better. In April, the Department of Corrections announced a program to use Conditional Medical Releases (CMRs) to reduce the prison population safely. We are both law professors, and along with Perry Moriearty at the University of Minnesota and Brad Colbert at Mitchell Hamline, we coordinated an effort involving all three Minnesota law schools and their students to inmates petition for CMRs. The students were thrilled to be putting their legal education to good use, helping an incredibly vulnerable population. We worked with more than 300 applicants and got to know their stories. We saw enough strong cases that we felt confident the project would succeed in reducing the prison population to protect those who would remain. We were wrong.

The DOC received over 2,300 applications for CMRs. Of those, it concluded that 729 applicants suffer from a medical condition that puts them at a high risk of "grave harm" if they contract COVID. Yet, the DOC has only released 143 individuals.

By DOC's own admission, there are 586 incarcerated men and women who are at a grave risk of harm, yet must remain in a congregate setting in prison because they were deemed to be a risk to "public safety." The DOC's definition of public safety resulted in vulnerable people being forced to remain in prison.

Some of the people denied CMRs are very ill and close to their release dates. For example, one petitioner was sentenced to one year and a day in prison for fleeing police and driving without a valid license. At that time, he was aware he had kidney cancer. He told the judge he was fleeing the police because he knew he was driving without a license, a probation violation, and did not want to die in jail. Although he is scheduled for release in November, the DOC denied his application for medical release, citing "community safety" as its basis.

Another petitioner was a man in his 50s who in the last few years has suffered two strokes and two heart attacks. He is scheduled for release in March, 2021, yet DOC denied his request for medical release.

Finally, one petitioner was a woman incarcerated at Shakopee who is 8 months pregnant. Her conviction is not violent, but DOC denied her request for medical release asserting that she posed a risk to public safety.

The DOC does not permit individuals like those listed above to appeal or otherwise request review of its CMR denial. Once denied, there is nowhere else to go.

Certainly, the CMR program is a complicated one to manage, balancing complex and conflicting interests. And the endeavor has been made all the more difficult by budget cuts mandated by the Legislature — cuts that could not have been more ill-timed.

Yet, even with the budget cuts, better choices could have been made. It is shortsighted to bar people from relief based only on their crime of conviction; that cuts against our core societal belief that people can change, even after committing crimes. On top of those broad strokes, too, it is hard not to see a degree of arbitrariness in the decisions that were made. Consistency matters in giving out sentences, and it should matter in reviewing them as well.

Finally, this failure resonates deeply in us. We invested into this project that which is most important to us: our students. We work hard so that they will see and support a justice system that is worth being a part of. We asked them to learn the stories of those in prison, to listen to hard truths, and they did. It is disappointing to know that the outcomes they are seeing represent a devaluing of life that should be beneath us as Minnesotans.

Jon Geffen is Director of the Re-entry Clinic at Mitchell Hamline School of Law. Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas.