Nearly seven weeks after an executive order made around 3,000 inmates eligible for a temporary reprieve to exit prisons during the coronavirus, just 337 have been released. Now the Supreme Court is considering a request to intervene, so some can pursue appeals.

Alexander Shalom, director of Supreme Court advocacy for the American Civil Liberties Union of New Jersey, said 1,500 inmates have now tested positive for coronavirus and 43 have died and that despite more cleaning and isolation by the Department of Corrections, the risk hasn’t abated.

“Parole release six months from now doesn’t help – that if we’re going to address this crisis, we need urgent action. And the way we get that is by setting up urgent procedures,” Shalom said.

Assistant Attorney General Stephanie Cohen said appropriate safety steps are being taken and that decisions about shifting people to home confinement are made at the discretion of the corrections commissioner.

“This type of decision is different. It’s a housing consideration, and this court has long held that housing and movement considerations are not subject to due process rights. It’s within the commissioner’s discretion and ability to be able to manage his prisons and the population as he sees fit,” Cohen said.

Cohen said 607 inmates have been approved for release under terms of Gov. Phil Murphy’s April 10 executive order.

A few weeks ago, the state starting mass testing of prison inmates for coronavirus – and now infection counts have tripled in two weeks, from 538 on May 13 to 1,592 as of Wednesday night. Around 8.6% of the prison population has tested positive.

“It’s an undercounting, we know that, because of the lack of testing, so we know there’s many hundreds more in all likelihood, if not thousands,” said Public Defender Joseph Krakora.

Supreme Court Associate Justice Barry Albin noted it’s much more likely the general population is the one being underreported, given that around 62% of inmates have been tested, through the Wednesday night update.

“If we had 4.5 million New Jerseyans tested for COVID-19, the percentage would be much, much higher than 2%,” Albin said.

Krakora said the pandemic has had a “catastrophic” effect, noting that 43 inmates have died due to COVID-19. The number has fallen by half between April, when 29 died, and May, when 14 have died to date.

Infections among staff are down nearly 60% this month, from 527 in April to 216 so far in May.

The number of confirmed cases among inmates went from 166 in April, when 90% of conducted tests were coming back positive, to 1,426 so far in May, when 13% of test results have been positive.

Shalom of the ACLU said prisons are petri dishes for coronavirus and that even people who don’t care about inmates and corrections officers ought to care about this.

“We’re not going to solve this health crisis if there are still people going into these vectors for disease every day and coming home and going to our supermarkets and to our hospitals and so forth,” Shalom said. “So this is really about protecting the health and the safety of all New Jerseyans.”

Justices didn’t indicate when a ruling would come, though when Cohen offered to provide COVID data next Monday covering the full month of May, they said they didn’t want to wait that long for it.

On Thursday, activists who want the Murphy administration to take faster action in releasing inmates plan to drive around the Trenton War Memorial in a mock funeral procession.

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