As state and federal governments take drastic measures to protect against the Coronavirus infecting and killing unnecessary numbers of persons, many officials overlook jails and prisons. Jails currently house individuals often awaiting trial or serving a misdemeanor sentence, while prisons house incarcerated individuals who are serving a prison sentence. There is virtually no likelihood that social distancing will occur in prisons or jails.
An inmate at Rikers Island tested positive according to officials on March 18, 2020. New York Mayor Bill de Blasio says he is working on a plan to remove persons at high risk who could be removed. On Thursday March 19 Maryland Governor Larry Hogan stated during his live press conference that he has no plans to release any inmates. He states that they are safer where they are. That comment defies the advice on social distancing and at risk individuals.
The very nature of the institutions requires close contact with guards, prison or jail personnel or others. Halting visitors will not stymie the ultimate spread of the Coronavirus in these institutions among those working or housed there. There are options available to slow the eventual spread of the disease.
Those individuals who are older and suffering from illnesses are the most likely to become infected with the Coronavirus. On a case by case basis, their cases should be reviewed to see if any inmates are good candidates for release. Those individuals who are close to completing their prison term, whether older or younger, should be seriously considered for release. The 7,000 jail and penal institutions are a “breeding ground” for the Coronavirus much like cruise ships and nursing homes. And with the spread of the disease likely, it would behoove prison officials and governors act now in some cases. Los Angeles, the nation’s largest jail system, already trimmed its population by releasing individuals with less than 30 days on their sentence.
In the federal system, The Bureau of Prisons compiles statistics on inmates. Less than 20% serve sentences for violent crimes of homicides, robberies and sex offenses. Another 19% serve time for weapons charges. The remaining individuals are serving time for non-violent offenses. Those individual cases should be reviewed to see if there are other early release alternatives available.
Many individuals in jails are incarcerated due to misdemeanor non-violent offenses with relatively low terms—some less than 90 days. Misdemeanor offenses mostly non-violent offenses make up most persons serving time in jails. And other individuals are in jail awaiting trial due to their inability to post bail. It’s one thing for a person awaiting trial for murder and unable to post bail; it’s another thing for a person in jail awaiting trial for misdemeanor theft and unable to post bail. In the cash bail system, where individuals cannot post bail, they must remain in jail until trial. With trials being postponed due to courts closing their doors, there are individuals who will remain in jail, without intervention, longer than their maximum allowable sentence.
Many may ask why does this all matter. It matters because sooner or later, many of these individuals will be released back into society. If we are effectively trying to curtail the spread of Covid-19, we must have a plan for releasing some individuals awaiting trial unable to make bail in a low risk misdemeanor case, younger and older individuals with a minimum amount of time left on their sentence and elderly and sick individuals whose cases may warrant compassion release.
There is time left to act to prevent the widespread of Covid-19 in jails and penal institutions and thereby ultimately outside those walls. The time to act is now.
Debbie Hines is a trial lawyer and former Baltimore prosecutor.