John Navigato survived advanced esophageal cancer, but now has compromised lungs and is prone to pneumonia. He’s 60 years old and worried that those factors put him at a much higher risk to contract a possibly fatal case of COVID-19 at his congregate living arrangement.
For him, that’s Oshkosh Correctional Institution, where he’s serving the final stretch of a 14-year sentence for felony murder related to a 2009 armed robbery. Eight inmates at the prison have tested positive for the coronavirus.
Since Gov. Tony Evers and the Department of Corrections have taken only limited steps to reduce prison populations, lawyers are trying new tactics to get less dangerous, most-at-risk inmates released one at a time.
They are asking judges to modify sentences on the grounds that the COVID-19 threat presents a new factor that was unknowable at the time of sentencing.
Navigato’s lawyers have formed Pinix & Donovan and focused on that task. The firm’s website URL is” getoutearly.com.” It asks, “Are You: Over the age of 50? Have heart disease? Lung Problems? Diabetes? Other immune system issues? If so, you may be High RISK and qualify for EARLY RELEASE.”
“The truth-in-sentencing system in Wisconsin doesn’t really allow the executive branch (the DOC) much authority to release inmates from prison early without court intervention,” Matthew Pinix said. ” So, these inmates are stuck in an incredibly dangerous situation unless the courts will help them out.”
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Christopher Donovan said that after just one ad in a prison newspaper, the partners have had dozens of inquires and so far filed three motions.
“With the parole system now 20 years in the rear-view mirror, sentence modifications like this are maybe the only chance Wisconsin prisoners may have to get out and try to reduce the overcrowding in the prisons that was a real problem even before the pandemic hit,” Donovan said.
All the motions contain a lot of the same language — primers on the scope and impact of the pandemic and its increased threat among correctional facilities and jails because of the age, health risk and other demographics of those populations.
But each then focuses a specific inmate’s health risk, offense history, record in prison, length of time remaining and planned living arrangements if released.
Last year, DOC had already recommended Navigato for “compassionate release,” a mechanism by which older, sicker inmates who have served at least 10 years of their sentence have the remaining time converted to extended supervision in the community.
Kenosha County Circuit Judge Bruce Schroeder denied it, but Pinix and Donovan hope Schroeder will take a new view of Navigato’s case in the context of the public health emergency.
The motion asks the court to “weigh the very likely possibility Navigato dies in prison from COVID-19 against the marginal benefits the relatively short remainder of his sentence would confer for punishment, deterrence, rehabilitation, incapacitation, or any other recognized and legitimate sentencing factor.”
Because of his health condition, remaining in prison during the pandemic amounts to cruel and unusual punishment, his lawyers argue.
No major outbreaks reported yet
So far, Wisconsin jails and prisons have not reported the kind of major outbreaks seen at some correctional facilities in other states, but inmate advocates and health officials still worry the flare-ups are coming.
“It is virtually impossible at current population levels for people who are confined to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission,” reads one part of the motion in Navigato’s case.
The DOC says only 20 inmates across all its facilities have tested positive for COVID-19 since mid-March, but fewer than 200 of the state’s more than 22,000 inmates have been tested.
Some county jails, which experience more frequent turnover, have reported many more infections, from about 30 in Dane County and 79 in Kenosha County, to more than 100 at Milwaukee County’s House of Correction.
Wisconsin’s non-partisan Legislative Reference Bureau recently released a report on the emergency release of prisoners due to COVID-19. It concludes that the DOC authority to release inmates is very limited and that Gov. Tony Evers is not likely to exercise his powers to grant clemency to currently incarcerated prisoners.
So, it’s down to judges.
The odds for release on the emergency motions probably aren’t great. Judges all over the state have already been flooded with similar requests to modify bails to allow inmates in pretrial custody or serving misdemeanor sentences to get out because of COVID-19.
In a few counties, like Milwaukee, judges, prosecutors, jail officials and the Public Defender’s office collaborated early in the crisis to identify and release the lowest risk inmates from local jails.
But after that low-hanging fruit, few other releases have been granted. Most judges fear potential criticism if someone they release early re-offends.
Christopher Childs, 47, pleaded guilty in October to federal sex trafficking charges but his sentencing has been postponed due to court restrictions related to the pandemic. In the meantime, he’s being held at the Waukesha County Jail, but says the conditions there present a grave risk and that he should be allowed out while he awaits sentencing to a federal prison.
Childs suffers from, “asthma, chronic back pain, high blood pressure, high cholesterol, gastroesophageal reflux disease, degenerative disc disease, chronic glomerulonephritis, hypertriglyceridemia, gynecomastia and sleep apnea,” according to a motion to reopen his detention hearing, filed by his attorney, Daniel Sanders
The motion, which is pending in federal court, notes that at the Waukesha County Jail, where at least two inmates have tested positive, still has inmates mixing together within pods much of the day, without instruction about safety practices, and without masks or extra soap for keep their hands washed.
Nurses who dispense medications twice a day don’t wear masks or gloves, nor do the inmates who deliver meals, or outside contractors who work in the jail’s canteen, where inmates can purchase toiletry items, according to the motion.
State Rep. Evan Goyke, D-Milwaukee, said he thinks the DOC has done a good job overall at preventing the rapid spread of COVID-19, but he would prefer more inmates be released to increase the chances DOC can continue that record, and to save money now, and in the long run.
“It often takes a budget crisis to make these budget arguments,” he said,
Goyke thinks more judges might grant sentence modifications like the one Navigato is seeking if the state Supreme Court would articulate reducing incarceration as a priority during the crisis.
He said he expects Evers’ administration is hesitant to use any creative or novel approaches to letting out prisoners for fear it would attract litigation from GOP lawmakers.
Adam Plotkin works in the administration of the State Public Defender’s office. He said its lawyers have been citing the threat of coronavirus in motions to reduce bails, or modify sentences, with mixed results.
While the argument worked in some urban counties, in others, he said, judges and prosecutors still argue defendants are safer from the virus behind bars than in the community. But Plotkin believes wider testing among incarcerated populations will be revealing.
Larger outbreaks among incarcerated populations, “seems inevitable. I don’t know how it can’t happen,” he said.
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