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July 15, 2020 Public Defense

Hero Public Defenders Respond to COVID-19

Malia Brink

In mid-March, as the realities of the spread of COVID-19 had only started to become clear, most lawyers were sent home and life slowed down. Concern swirled around adaptation to the various levels of shutdown, family and health concerns, and personal and professional economics. But for public defenders, walking out of the office and slowing down was not an option. COVID-19 posed an extraordinary threat to their clients, requiring them to do more and fight harder than ever before. So many rose to the challenge, and their actions saved lives. They may also change, long term, how we look at incarceration.

Why Disease Loves Prison

Every public defender I know thought only one thing when they first heard about COVID-19: “What are they going to do about the jails and prisons?” While COVID-19 is new, public health issues in correctional facilities are old: a constant, looming concern for public defenders and their clients. Jails and prisons are unclean places where individuals live in tight quarters with shared critical facilities. Common cleaning supplies are considered contraband, and even soap is shared, if it is available at all. Movement into and out of facilities is constant, particularly in jails where people cycle in and out daily with new arrests, releases, and sentence transfers.

Compounding these environmental factors, the population of incarcerated individuals starts less healthy than the average population. They have higher rates of heart disease, diabetes, and respiratory compromise, to say nothing of mental health and addiction disorders. Yet most prisons and jails lack appropriate health care facilities. As Lipi Roy, former Chief of Addiction Medicine for New York City jails, wrote in Forbes on March 11, 2020, “Clinics in correctional facilities are often understaffed and the quality of healthcare behind bars is considered substandard.” Those incarcerated are often discouraged from seeking treatment by the co-pays they are charged for doctor visits, medications, and other health services, which often equate to months of earnings, as they are paid as little as $0.15/hour for their labor.

All these factors—the environment, the constant movement, the propensity toward illness, and the lack of access to treatment—makes correctional facilities hotbeds of contagion. Jails and prisons are designed to maximize supervision with minimal staffing, not to prevent the spread of disease. So, diseases flourish. Over the decades, public defenders have seen any number of diseases spread through the incarcerated population—hepatitis, flu, even tuberculosis.

Public Defenders React Swiftly

With this history, it is not surprising that as the fears about COVID-19 spread, the thoughts of public defenders turned to jails and prisons. They sprang into action, devising any number of ways to seek to help ensure that those who could be released would be and that those who remain behind have access to appropriate cleaning supplies, a plan for social distancing, and access to health care.

Cleveland Emergency Hearings

On Thursday, March 12, 2020, Cuyahoga County Court (Cleveland) announced it would hold a special session on Saturday, March 14, 2020, to address bail reductions, plea bargains, and sentence modifications. The stated purpose was to reduce the jail population to allow the facility to prevent and prepare for possible cases of COVID-19. Cuyahoga Administrative Judge Brendan Sheehan explained the rationale to a local television station, “If it hits right now, the sheriff is going to be crippled, and he’s going to be looking at me and saying we’ve got to order people out of jail. At least now we’re doing it in a systematic approach and judges are able to use their discretion.” The public defender’s office and the prosecutor’s office worked tirelessly over the next 36 hours to evaluate cases, exchange proposals, and communicate with clients, victims, the probation department, and other entities to determine what was feasible and appropriate. On Saturday, March 14, 2020, nine judges held more than 50 hearings. Thirty-eight individuals were transferred or released. The hearings continued through the end of the next week, after which the jail population had been reduced from 1,900 to 1,300, allowing the facility to create 25 isolation spaces and quarantine spaces for up to 48 individuals. All of this was accomplished before a single individual with a connection to the jail had tested positive.

The New Jersey Release Agreement

On March 19, 2020, three days after the courts closed in New Jersey and at a time when the entire state had less than 1,000 diagnosed cases, Chief Public Defender Joseph Krakora wrote a letter to New Jersey Chief Justice Stuart Rabner, copying the attorney general, that requested “the Supreme Court’s consideration of a proposed Order to Show Cause designed to commute or suspend county jail sentences currently being served by county jail inmates either as a condition of probation for an indictable offense or because of a municipal court conviction.” The consideration, he said, was warranted by the imminent threat posed by COVID-19 to the jail population: “It is inevitable that the virus will spread into the county jails and, when that happens, the health and well-being of inmates and jail staff members will be at tremendous risk. It is therefore incumbent upon the criminal justice system to reduce our county jail populations to the extent possible without compromising public safety. This is a moral imperative as well as a legal issue.”

The chief justice acted swiftly. County prosecutors and the ACLU of New Jersey were brought into the matter and the chief justice appointed a retired judge to mediate the discussions. By Sunday, March 22, 2020, a mere three days later, they had reached an agreement, and Justice Rabner entered a Consent Order. The Order suspended sentences and established a presumption of release for anyone serving a sentence of one year or less on a municipal court conviction or a probation/parole violation. Prosecutors had until the end of the next day—Monday, March 23, 2020—to register an objection to anyone they believed should not be released. Releases of all others would begin on Tuesday, March 24, 2020. The order covered 539 cases. Prosecutors agreed to release 279 by consent, as well as many, many others not covered by the order. Those to whom the prosecutors objected were subject to quick hearings, after which around two-thirds were released. In all, about 700 people were released because of this process.

Mass Writs Filed in New York

In New York, as both detained individuals and staff members began to test positive in Rikers, the New York Legal Aid Society sprang into action, filing mass writs on behalf of those detained for technical parole and probation violations and those detained pretrial whose age or medical condition made them particularly vulnerable to COVID-19. The initial writ, covering 116 individuals, was filed on March 20, 2020. It was followed by several subsequent mass writs, as well as numerous individual motions filed by Legal Aid and other public defense providers in New York. By the end of March, the New York City jail at Rikers Island had thinned dramatically from over 5,200 to around 4,300. The population had not been below 5,000 since World War II.

As these efforts proceeded, many of the worst fears about the spread of COVID-19 in jails played out. On Sunday, April 5, 2020, Michael Tyson, 53, died of COVID-19 in New York. He had been in custody at Rikers Island for nearly three weeks on a technical parole violation. The New York Legal Aid Society and the New York Civil Liberties Union had filed a writ requesting his release the week prior to his death.

Across the country:

  • In Kentucky, public defenders filed more than 1,500 bond reduction motions in about 10 days. By March 29, 2020, Kentucky had reduced its jail population by almost 30 percent.
  • In Hawaii, the public defender worked with the courts and prosecutors to reduce the jail population by 24 percent while also pursuing expanded pretrial release and filing a petition to the Hawaii Supreme Court to release of hundreds of additional individuals convicted of nonviolent offenses.
  • In Tulsa, Oklahoma, the public defender worked to establish a special docket for release actions and eventually developed a cooperative process with the prosecutor’s office for review and release of some individuals. The result was a 15 percent decrease in the jail population in 10 days.

Fighting Despite Opposition

In some locations, public defenders faced significant opposition from prosecutors and other local authorities.

In New Orleans, public defenders initially sought release of jail inmates under a preexisting Emergency Order entered after Hurricane Katrina but were told that COVID-19 was not a hurricane, so the Order did not apply. Thereafter, public defenders began filing individual motions for release for a variety of clients. These motions helped reduce the jail population to just over 900, the lowest point in 30 years. As the number of jail staff diagnosed with COVID-19 increased, the office filed a motion for release of individuals in a number of categories: (1) all those whose age or health puts them at greater risk, (2) all inmates held on misdemeanor charges, (3) all inmates who are being detained on suspected parole violations, and (4) anyone within 30 days of finishing his or her sentence. The Orleans Parish District Attorney resisted these efforts, suggesting that releasing the individuals as sought by the public defender might create a dangerous situation, even as the Orleans Parish Sheriff supported expanding the scope of releases.

In Chicago, in mid-March, the public defender’s office entered into a negotiation with the prosecutors to determine whether releases could be agreed upon for some of the 5,500 people in the county jail facilities. After 10 days of negotiation produced only 100 releases. On March 23, 2020, the Cook County Public Defender Office filed a request for a mass release of individuals with underlying health conditions, pregnant women, those detained due to inability to pay cash bail, and those detained for nonviolent offenses. That same day, the first two prisoners in Cook County jail tested positive for coronavirus.

Judge LeRoy K. Martin ordered a case-by-case review intended to clear a broad array of prisoners. Hearings on these cases began almost immediately but moved slowly, releasing only about 70 inmates in the first two days. The population at Cook County jail facilities remained above 5,300.

On April 3, 2020, as releases slowed and the number of positive cases in the jail continued to grow, civil rights lawyers filed a class action suit in federal court requesting improved jail conditions and the release of medically vulnerable inmates. On April 9, 2020, the court ruled that the sheriff did not have to immediately release individuals but must take actions to improve conditions in the jail. By that point, more than 350 incarcerated individuals and staff in the Cook County jail had tested positive for the virus, the first inmate had died from complications from COVID-19, and the jail was named a COVID hotspot.

Heroes of COVID-19 Response Efforts

From mid-March to early April, public defenders seeking release studied and detailed jail and prison conditions, demonstrating that with current populations, these facilities could not undertake the social distancing and quarantining required to diminish the spread of COVID-19. They chronicled the medical and criminal histories of their clients, showing that many have heightened risk factors and that many more could be released without threat to the outside community. They went into jails to interview clients, even when doing so required them to submit to a 14-day quarantine immediately following those visits. They were accused of “grandstanding” and being “melodramatic.” They continued to fight knowing that one released person who reoffends would make far more news than the hundreds that would not. They watched the number of cases and deaths in jails and prisons rise, and they kept on standing beside their clients and fighting for them. They will not be as lauded as the doctors or nurses, or even the grocery clerks and Amazon workers, but they are among the heroes of this crisis and their actions saved lives.

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Malia Brink serves as the associate counsel for public defense to the ABA Standing Committee on Legal Aid and Indigent Defendants.