More states need to use their "good time" systems to get people out of prison during COVID-19

Most states have statutes that allow incarcerated people to earn time off of their sentences. Why aren't more states using this tool to safely reduce prison populations during COVID-19?

by Emily Widra and Wanda Bertram

With the COVID-19 infection rate in prisons four times that of the general U.S. population, public health and medical experts are urging prisons to reduce their populations to save lives. But governors and corrections officials are still passing the buck — almost a year into the pandemic. Overlooking existing mechanisms that could be used to release people, states have instead imposed a number of policy changes that have caused further harm to the incarcerated people they are supposed to protect:

• Correctional agencies have suspended programs, classes, and other valuable resources for incarcerated people. Not only does suspending programming make life in prison more difficult; it also slows down upcoming releases: People who have been approved for parole are still waiting behind bars to complete programs required for their release.
• Shockingly, despite clear evidence that solitary confinement is not a suitable replacement for medical isolation or quarantine, the use of solitary confinement has increased 500% during the pandemic.
• Visitation has been limited or completely suspended in all 50 states and the federal prison system, and no states have provided free video and phone calls while visitation is suspended.
• Prison systems have delayed thousands of releases scheduled for 2020, scrambling to balance the need for fewer people behind bars with the need to connect people to community health resources if they have been exposed to COVID-19 prior to release.
• Transfers have slowed, and in some places, completely halted to prevent the spread of COVID-19 between facilities. As a result, people have been stuck in limbo at transitional facilities that are not designed to house people for months at a time, or imprisoned in higher security facilities than are necessary.
• Corrections staff are reprimanding incarcerated people for inadequate social distancing, even though maintaining physical distance from others is impossible in prison.

What states need now is a simple, equitable way of getting lots of people out of prison safely, rather than continuing to incarcerate them in ever more dangerous and cruel conditions. A solution — albeit one that will require legislative action in most states — is for states to immediately change their "good time" policies.

"Good time" — also called "earned time," "meritorious credit," or similar — is a system by which people in prison can earn time off their sentences. States award time "credits" to incarcerated individuals to shorten the time they must serve before becoming parole-eligible or completing their sentences altogether.

Good time systems vary between states (see the National Conference of State Legislatures' detailed table) but time credits are often given out for participating in programs. For example, New York offers a six-month credit for completion of the GED. 26 states have a good time program that offers credits for certain educational programs and attainments, while 23 states offer credits for vocational training, 17 for participation in mental health or substance abuse treatment, 16 for work, 21 for other programming, and five for participating in disaster response (like firefighting).

Almost none of these kinds of programs are being offered consistently during the pandemic, effectively eliminating the option for incarcerated individuals to reduce their sentences while in prison during COVID-19.

People in prison can also often earn time off their sentences by complying with prison rules. During the pandemic, people in prison have had to comply with much stricter rules than usual, including lockdowns that subject entire prisons to conditions "akin to solitary confinement." Yet most have not been rewarded with additional "good time" for compliance with these harsher conditions.

Rather than holding people back from accruing good time credits during the pandemic, states should give out more of those credits, not just because it's the fair thing to do but because it will allow some people to leave prison immediately. At least one state — New Jersey — has already used time credits to get people safely out of prison, with impressive results.

In October, New Jersey Governor Phil Murphy signed Bill No. 2519 into law to shorten sentences and allow for early releases during the COVID-19 crisis. The bill mobilized "public health emergency credits" and "compliance credits" to shorten sentences, similar to the way good time credits can reduce sentence lengths.

Almost immediately after the bill was implemented, more than 2,000 people were released from New Jersey state prisons, signifying one of the first large-scale releases during COVID-19. Because large-scale releases do not inherently threaten public safety, more states should consider using good time or similar earned credit policies to reduce the number of people behind bars significantly.

Changing good time policies has advantages over other mechanisms that states can use to release people. For example, 16 states have revoked the right to parole for most people in prison (the disastrous result of Truth in Sentencing laws). These states should bring back parole as soon as possible, but in the meantime, they can use good time credits to hasten decarceration. Awarding more good time credits is also efficient, as it leads to immediate release for people who were already close to their release dates anyway.

It is likely that other states will also have to pursue these efforts through new legislation, which is not ideal during a public health crisis. But New Jersey has demonstrated is that it is possible to enact such a bill quickly (Bill No. 2519 was passed in mid-October, and the 2,000 people were released shortly after, during the first week of November).

New Jersey's release of thousands of incarcerated people is a good start, but states looking to use their legislation as an example should expand upon the work New Jersey began. For example, the New Jersey legislation excludes people who are serving sentences for specific offenses and only applies to people who are within a year of their scheduled release dates. States should award credits to shorten the sentences of all people incarcerated during COVID-19, regardless of offense type or sentence length.

Specifically, we recommend that state prison systems with existing good time systems make these permanent reforms immediately:

1. Grant additional good time credits to all incarcerated people for serving time during the pandemic.
2. At a minimum, people who would be earning good time through a program that has been suspended during the pandemic should be credited with that time, since they lost the opportunity through no fault of their own.
3. Expand eligibility to all incarcerated people, regardless of offense type or sentence length.
4. Refrain from revoking good time credits that people in prison have already accrued, except for the most serious of offenses.
5. Protect good time that people have already earned by making time earned credits vested and immune from forfeiture after five years.

States that do not have systems that allow people to earn time off their sentences should create those systems, and give all incarcerated people a meaningful opportunity for release. Good time is one of the most effective mechanisms that states can use to release incarcerated people in a timely manner (we wrote about the other seven in our report Eight Keys to Mercy). As a pandemic continues to turn prison sentences into death sentences, it has never been more urgent that state prison systems strengthen their levers of mercy.