With social distancing impossible, what do we do about inmates?

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Dr. Dave Campbell, Chief Medical Correspondent, Morning Joe / MSNBC

When Attorney General Bill Barr called for increased home confinement over incarceration to stem the spread of coronavirus in federal prison, it showed that bipartisan demands for inmate releases had gained significant momentum.  “We don’t want our institutions to become petri dishes,” said Barr, who directed the Bureau of Prisons to identify prisoners who have shown good conduct, were convicted of lower level crimes and have plans for release that would not create greater risks for spreading the virus.  The Attorney General also urged his prosecutors to consider the risks of increasing the jail population during the pandemic when making bail recommendations.

But for many advocates, including some elected prosecutors who support major criminal justice reform, this was far from enough.  In a letter signed by 31 District Attorneys, they called for the immediate release of the elderly, the infirm, inmates who are within 6 months of completing their sentences and those incarcerated due to technical violations of probation and parole, unless doing so would pose a serious risk to the community.    

With state prisons and local jails housing around 90% of the 2.3 million inmates in the United States, the question of releasing prisoners during the coronavirus pandemic is overwhelmingly a state and local issue.  Attorney General Barr may make the biggest headlines, but it’s the policies of elected state and local officials -- especially Sheriffs and District Attorneys -- that matter most. 

Although well-intended to prevent or alleviate a public health crisis in the making, the problem with a one-size-fits-all national strategy for inmate releases is that it ignores the unique circumstances of each community.  A policy of large-scale, vetted releases in New York City’s overcrowded Rikers Island jail complex makes sense with at least 273 inmates, 321 corrections personnel and 53 health staffers testing positive for coronavirus as of Sunday.  Similarly, Chicago’s Cook County jail is reducing its population to try to stem a massive outbreak that has already infected at least 221 inmates and 70 staff members

But in communities with no reported cases of coronavirus in their jails, there are concerns that large-scale releases would jeopardize public safety.  In Palm Beach County, where anxiety over coronavirus has helped fuel a surge in gun sales,  Sheriff Ric Bradshaw has rejected the idea of early releases.  Bradshaw noted that his county jail is half-full, every inmate is screened by medical professionals upon admission, and visitors are not permitted in the facility.  Although two deputies who work in the jail division have tested positive for COVID-19, so far no inmate has shown any symptoms of the virus.  

In the absence of an adequate public safety net for behavioral health issues, and with high rates of opioid addiction, Palm Beach County has long depended on the county jail as the community’s largest mental health provider.  With many non-violent inmates in recovery for substance use disorder, a large-scale release of individuals into the community during a state of emergency with a dormant economy, no employment options and an overburdened healthcare system could be a recipe for disaster.  

Aware of the unintended consequences of blanket orders, elected prosecutors are adopting a case-by-case review process in an attempt to thread the needle between public health and public safety.   Los Angeles County District Attorney Jackie Lacey, who leads the largest office of state prosecutors in the country, announced that her office will delay the filing of new cases against nonviolent offenders who do not pose a risk to the community, and will allow defendants who violate their probation or parole on nonviolent and non-serious crimes to be sent home instead of returned to custody.

In Palm Beach County, we recently released a plan to reduce bonds for non-violent, non-forcible (i.e., non-burglary) third degree felonies from $3,000 to $1,000.  The plan also includes working with defense attorneys to identify non-violent offenders near the end of their sentences who do not pose a risk to the community, and to expedite bond hearings to occur within 24 hours.

Ultimately, each community will have to make its own decision based on the facts on the ground.  In Hillsborough County, Florida, the Chief Judge authorized the Sheriff to release people from jail accused of third-degree felonies.  Such releases will be less likely in Palm Beach County, where the Sheriff and State Attorney have noticed a marked increase in the number of car burglaries, a third-degree felony, while people are advised to remain at home.  Releasing such inmates, or allowing defendants accused of the crime to be sent home on their own recognizance without first seeing a judge at a bond hearing, could create a public safety hazard.

Another issue for prosecutors and law enforcement to consider: Marsy’s Law, which provides specific protections for victims’ rights in state laws and constitutions.  The initiative, which started in California has been enacted in 11 states including Florida, requires that victims be given timely notice of an inmate’s release, and for victims to be heard in any hearing involving the release.  In a letter to Florida prosecutors to remind them of the requirements of Marsy’s Law, a victim outreach coordinator wrote that in light of “self-isolation and quarantines…please help ensure victims do not also experience a potentially dangerous or even life-threatening encounter with a perpetrator they believed was still incarcerated.” 

The myriad of different responses to the COVID-19 threat in our jails and prisons reflect the global uncertainty and anxiety over this pandemic.  It is important for criminal justice policymakers to recognize that since this is not a static crisis, they should not feel constrained by their previous decisions.  A refusal to release prisoners today should change if an outbreak occurs tomorrow.  Balancing public health and public safety is not an easy task, but the Sheriffs and District Attorneys who are elected by their own communities are best equipped to respond to the unique needs of their own communities.