Commentary

HEROES Act Would Benefit Murderers and Illegal Aliens

By Hans Bader | May 18, 2020 | 12:30pm EDT

Voting along party lines, the liberal House of Representatives voted Friday to pass a bill spending $3 trillion more in response to the coronavirus pandemic. That's a cost of more than $9,000 per person for every man, woman, and child in America. The bill is not expected to pass the Republican-controlled Senate in its current form.

The bill, known as the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, includes billions of dollars in refundable tax credits for illegal aliens. Illegal aliens often file tax returns, not in order to pay taxes, but rather to receive money from the IRS through refundable tax credits. Illegal aliens who file tax returns solely in order to receive tax credits from the IRS will receive additional money under the bill. As FactCheck.org notes, $4.2 billion in refundable tax credits were paid to illegal aliens by the IRS in 2010.

The House bill also provides more than $100 billion in tax cuts for certain wealthy people in liberal areas. It also would authorize $1,200 stimulus checks for most (but not all) people making less than $75,000 per year.

But perhaps the biggest winners under the House bill are federal prisoners in certain age categories, or with certain health conditions (including temporary or treatable ones). Those prisoners could be released under the bill, even if they committed serious crimes such as murder, rape, and robbery.

The HEROES Act includes provisions that would release prison inmates just because they are over age 50 or under 18. They could be released even if they have recently committed murder, and have served almost none of their sentence. Once released, inmates would not return to prison even when the coronavirus epidemic ends. Inmates would have to be released even if they have a communicable disease such as COVID-19. That is so even though some inmates are already deliberately contracting COVID-19 in hopes of getting released.

These provisions are found in a part of the HEROES Act called the “Emergency Community Supervision Act.” It requires the “Bureau of Prisons” to “place in community supervision” — supervised release — all prisoners who are “50 years of age or older,” or below age 18. (It also requires the release of prisoners with less than a year left on their sentence, and inmates with a “health condition,” such as pregnancy, diabetes, "minor skin cancers," or a weakened immune system.)

So if a 50-year-old murderer has just been put in prison, after being sentenced to 20 years, he can be released. It doesn’t matter that he hasn’t served any of his sentence. Releasing such inmates is risky, since murderers can go on to kill again even when they are over 50. Famous serial killers were still active at age 50: Albert Fish started killing at age 54, and Dorothea Puente started at age 53. Peter Tobin kept killing until he was 60, and John Reginald Christie killed people until he was 53.

In theory, the bill allows some dangerous prisoners to remain jailed, if prison authorities ask the courts to keep them in prison, and a court finds strong proof that a prisoner poses a “specific” rather than generalized risk of violence. But it is hard to predict a specific violent crime even when the risk of violence is real. Criminals aren’t that predictable. They often commit different crimes after being released than they did in the past. Most murderers never kill again, but some do.

The bill doesn't allow inmates to be kept in jail just because it is slightly more likely than not that they will commit more acts of violence. To keep a dangerous inmate from being released, a judge must find “by clear and convincing evidence” that the inmate poses “a specific and substantial risk of causing bodily injury to or using violent force against the person of another.” Even if a judge finds such a risk, he can still release an inmate after taking into account the inmate’s “age” and whether detention will affect “access to adequate medical treatment.”

Thus, the bill makes it very hard to keep murderers in jail, especially murderers over the age of 50. That's bad, because even elderly inmates can kill again. Albert Flick is a classic example. At the age of 76, he murdered a woman, stabbing her at least 11 times while her children watched. He had previously been imprisoned for killing his wife by stabbing her 14 times in front of her daughter. After his release, he assaulted a woman in 2010, but he avoided a long prison sentence because a judge deemed him too old to be a continuing threat. After being released from prison again, he killed Kimberly Dobbie in 2018.

Killers and rapists released under the bill won't be returned to prison even when coronavirus disappears. Under the bill, prison officials are specifically banned from taking the prisoners back to jail even when the epidemic ends. It states that “no individual who is granted placement in community supervision…shall be re-incarcerated…only as a result of the expiration of the national emergency relating” to coronavirus.

That is unfortunate because studies show that keeping inmates in prison reduces the crime rate. Parolees often commit more crimes after being released. Longer prison sentences also deter crimes from being committed in the first place.

Supporters of releasing criminals say it will reduce inmate mortality by protecting them from catching the virus while in prison. But COVID-19 doesn’t kill most inmates who get it — only a tiny fraction die of it. Many inmates who carry the coronavirus don’t even know they have it. Lawyer John Hinderaker says “95 percent or more of the inmates who test positive for COVID-19 never knew they had it.” But released inmates can give it to other people, such as elderly relatives whose immune systems are weaker and who could die of coronavirus as a result.

Recently released prisoners are testing positive for COVID-19, even when they were screened before release and showed no symptoms. This is raising “concerns” that the disease “could spread to the communities where people return upon release.” When inmates are released, they commonly live with their elderly parents, who are much more vulnerable to COVID-19 than a middle-aged or juvenile inmate is. A 50-year old inmate will often have parents who are in their 70s or 80s, who can contract the disease from the inmate, and then die of it.

States have already released some inmates in response to the coronavirus epidemic. In response, some inmates have decided that getting infected with COVID-19 is their ticket out of prison. According to CNN:

"Inmates at a Los Angeles County correctional facility drank from the same cup with the purpose of infecting one another, resulting in 21 cases of coronavirus, Sheriff Alex Villanueva said.

The inmates at North County Correctional Facility in Castaic are seen on surveillance video crowding the hot water dispenser, sipping the water, and also “sniffing” out of a common mask, according to Villanueva."

Certain states are releasing sex offendersmurderers, and robbers from prison. That has enabled criminals to commit new crimes. ABC News reports:

"A high-risk registered sex offender was arrested Thursday for allegedly exposing himself…just two weeks after a controversial early release from the Orange County Jail.

Seven inmates who were deemed high-risk sex offenders were released early in April by a court commissioner, triggering criticism and warnings from county law enforcement officials who said the release was not necessary because the jails were not overcrowded."

An armed robber released from prison in Colorado due to COVID-19 was arrested for first-degree murder shortly thereafter.

In Massachusetts, “two convicted murderers from the North Shore are among the more than 200 inmates released by the Massachusetts Department of Correction” in response to a state supreme court ruling. One of the murderers “stabbed” her victim “108 times over the course of several hours.”

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.

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