Faced with the looming threat of the coronavirus, Harris County, Texas, Sheriff Ed Gonzalez did something unusual for a lifelong law enforcement officer. Two weeks ago, he issued a “compassionate release” plan to complement an arrest-reduction strategy that shrank the jail population from 9,100 to 8,500 in just a few weeks.
Allowed to continue, the new plan would have removed several hundred more elderly or ill defendants from jail ― but it ran into an insurmountable hurdle.
On March 20, Judge Herb Ritchie issued a general order limiting the defendants eligible for release to those who had committed low-level, nonviolent felonies like forgery, credit card crimes and possession or delivery of marijuana. An analysis run by the sheriff’s office projected that the order, which has yet to go into effect, will limit the number of inmates released to just 36.
This isn’t an anomaly, advocates say. Across the country, despite unprecedented cooperation between other facets of the criminal justice system to prevent the spread of COVID-19, the illness caused by the coronavirus, judges are standing in the way of reducing jail populations.
“I am but one actor in a larger criminal justice system,” Gonzalez tweeted recently. “I do not hold the authority to release. We are dependent on others that do hold the authority.”
Judges’ intransigence is already having deadly consequences, advocates say. “County jails are going to be the worst cruise ships in the whole United States,” said Hannah Jane Sassaman of Movement Alliance Project, a Philadelphia-based organization pushing judges to clear jails of as many people as possible to avoid the calamity that’s befallen places like Rikers Island in New York City.
As of March 30, at least 167 inmates and 114 staff members at New York City jails had tested positive for COVID-19, the majority of them at Rikers. One 57-year-old prisoner recently told HuffPost, “I just feel like I’m sitting on death row, waiting to die.”
In Chicago, Cook County Correctional officials have, so far, reported 134 infections among detainees in the Cook County Jail, and 20 among staff. Each day, it seems another county jail reports its first positive coronavirus case.
Many police officials and district attorneys are proposing sweeping changes to their own routines — arresting fewer people, for instance, or allowing more defendants out without bail. But judges across the country are often the final decision-makers regarding who gets out and when. And advocates say many judges have been dangerously behind the curve.
- ‘County jails are going to be the worst cruise ships in the whole United States.’
“We’ve seen movement on not bringing as many people in,” said Philadelphia criminal defense attorney Mark Houldin, referring to the Philly police commissioner’s order to halt low-level arrests. “But nothing to let people out.”
Part of that is due to court closures, notes Houldin, but judges are also refusing to review cases, even when they could potentially do so using the same videoconferencing technology they are currently using for arraignments and initial bail hearings. A judge could also issue a general order for mass relief for people held on specific violations and offenses.
“I myself have filed motions that I have heard no response on,” said Houldin, a former longtime Philly public defender. “Other people have gotten summary rejections by a court clerk, not the judge, saying this doesn’t qualify as an emergency so it’s not going to be heard.”
Rather than wait for judges to take action, advocates around the country are pushing forward with their own solutions. Last Monday, New Orleans Public Defender Derwyn Barton filed a writ of habeas corpus on behalf of “vulnerable and non-violent inmates” inside the Orleans Justice Center, a jail with 1,438 beds and 13 coronavirus cases. In a city fast becoming the pandemic’s latest epicenter, Barton demanded the immediate release of several classes of detainees, including some felony defendants.
“The demographics of our clients mirror assisted living centers and nursing homes more than they mirror the regular population,” Barton said, noting that, in addition to poverty, his clients have disproportionate levels of high blood pressure, diabetes, heart conditions and obesity.
- ‘We need to go way farther and much deeper if we want to do our part to prevent the spread of this fire.’