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NEWS

Commentary: US criminal justice systems respond to COVID-19’s threat

FairTrialsAdmin - April 6, 2020 - COVID-19 Updates, Commentary

The US criminal justice landscape is going through a rapid transformation as the reality of COVID-19 engulfs the nation. Criminal justice systems in the US tend to be local – controlled by city, county or state authorities, each abiding by local rules. Therefore there is huge variation in how localities are responding – some with significant release of people from detention, and some not at all. Responses have been undertaken by diverse authorities – police, prosecutors, mayors, state governments, and judges following arguments by public defenders and strategic litigators like the ACLU. These have resulted in notable reductions in jail populations in states like Colorado (where there has been a 30% reduction in incarceration) and in San Francisco (which has seen a 25% drop). The situation is extremely dynamic, but a few trends and resources can be identified.

Tracking Resources: Several organizations are tracking state and local level responses. As the situation shifts daily, these are key resources to stay updated.

Prosecutors: On the federal level, Attorney General Bill Barr directed the Federal Bureau of Prisons to consider releasing vulnerable federal prisoners to home release where appropriate.

Progressive elected prosecutors, mostly from major cities, have taken steps to reduce pre-trial detention. On March 17, 31 top prosecutors from around the nation organized by Fair and Just Prosecution issued a joint statement laying out steps to reduce to prison population and slow the spread of COVID-19. Two important pre-trial reforms suggested in the letter:

(1) adopt cite and release policies for offenses which pose no immediate physical threat to the community, including simple possession of controlled substances;

(2) release all individuals who are being detained solely because they can’t afford cash bail, unless they pose a serious risk to public safety.

As just a few examples of these policies in practice, in the city of Baltimore, State’s Attorney Marilyn Mosby announced that the city will stop prosecuting some nonviolent charges, including drug possession, trespassing, prostitution, attempted distribution and violating open-container laws, amid the coronavirus pandemic. In Brooklyn, District Attorney Eric Gonzalez announced similar measures. San Francisco District Attorney Chesa Boudin directed his prosecutors not to oppose motions to release pretrial detainees facing misdemeanor charges or drug-related felony charges if the person is deemed no threat to public safety. Boudin also directed his staff to “strongly consider” credit for time served in plea deals so that more people can be released. In Philadelphia, District Attorney Larry Krasner announced that no defendant charged with misdemeanors or non-violent felonies should be held pre-trial, and directed line prosecutors to exercise discretion in relation to charging, among other initiatives, including speeding up review of early parole or release petitions, bail reduction requests, and requests to lift detainers. Seattle District Attorney Dan Satterberg announced that his office would only file charges for violent crimes for which defendants were already in custody.  

Police Forces have also taken steps to minimize arrests in cities including Philadelphia (where police are refraining from arresting people on  narcotics, theft, burglary, vandalism, prostitution, car theft, economic crime and existing bench warrants). In Los Angeles, Sheriff Alex Villanueva said deputies and police officers across the county have been directed to cite and release people whenever possible, instead of arresting them, and to seek medical clearance before booking anyone who shows symptoms. Countywide, he said, arrests have dropped from a daily average of 300 to 60, while the jail population was reduced by more than 600 inmates.

Public Defenders: Many public defender services have mounted heroic campaigns to release as many people as possible, even while prison visits and many court hearings are suspended. In San Francisco, the office of the public defender is filing motions to seek the immediate release of all clients being held pre-trial in San Francisco county jails who are at heightened risk for illness from coronavirus. The Legal Aid Society of New York is tracking infection rates in its local jails. Some public defenders are also engaging in strategic litigation, like the Public Defender Service of Washington DC, which has teamed up with the ACLU to sue for the release of every person being held on a misdemeanor. Lawyers in California are also petitioning for the mass release of people from prison, and for the targeted release of older and medically fragile prisoners in Illinois, as a few examples. Sample motions for release are being collected by the National Association of Criminal Defense Lawyers.

Departments of corrections are also using their authority to release people serving sentences who may face particular health risks, or who are otherwise eligible for parole or early release.

State governors can also use their clemency power to release prisoners, but few have used this power to the extent necessary to avoid serious spread of the disease. Governor Cuomo in New York has come under particular fire for not taking stronger action to release more people from prison in the wake of the country’s most severe outbreak, particularly from Riker’s Island, which has the highest concentration of COVID spread in the world.

Judicial decisions: Some courts, like those in Ohio, have been active in releasing people from prison, particularly in the context of pre-trial detention. A Massachusetts court found that there is a presumption of release for all arrested people in the context of COVID. Decision can be read in its entirety here.

Fair Trials will continue to monitor the situation in the USA. Please do not hesitate to contact us at [email protected] for further information.

 

 

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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