The ACLU of Virginia, Richmond’s public defender and other legal advocate groups are calling for the release of many nonviolent inmates given the threat of the coronavirus to vulnerable incarcerated populations.
Also this week, Richmond’s top prosecutor said her office is working with the Richmond Magistrate’s Office and the Police Department to allow the release of individuals awaiting trial who are charged with nonviolent felonies and do not pose a risk to the community.
On Wednesday, the ACLU of Virginia urged authorities to release inmates who are being held in jails awaiting trial on misdemeanors or nonviolent felony charges. The organization is asking prosecutors, sheriffs, police chiefs and regional jail authorities to work with each other as well as with judges and magistrates to make that happen.
“We too often forget that people held before trial are presumed innocent and should be treated as such,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia.
Also, she said that police chiefs and sheriffs with law enforcement authority should be directing their officers to follow state law by issuing summonses and releasing anyone they observe committing a misdemeanor.
In a letter on Tuesday to judges, law enforcement officials and others, Richmond Public Defender Tracy Paner asked for the immediate release from jail of people being held for nonviolent offenses and to ensure that inmates and detainees are safe.
In her letter, Paner asks that the probation and parole office in Richmond immediately lift holds for people with nonviolent charges. She also asked that probation, parole and pretrial meetings, court-ordered classes, in-person drug testing and collection of court debts all be “suspended and modified so that all reporting conditions are conducted by phone.”
“Today, as the number of COVID-19 cases rises in central Virginia, we are calling upon leaders of the justice system to take immediate action to limit the spread of the virus and the potential catastrophic effects on our community and clients both in jail and out,” Paner wrote.
Her office, along with the Richmond Community Bail Fund and the Legal Aid Justice Center, also are calling for the release of all incarcerated individuals, but Paner said that was unlikely.
Paner’s attorneys have filed bond motions for nearly every one of their clients awaiting trial, prioritizing those who are immunodeficient or older and therefore more susceptible to the virus. Paner said they are asking for judges to consider early release for those who are nearing the end of their sentences. But she criticized the level of cooperation from both the prosecutor’s office and Richmond bench.
“Even today with the growing recognition of the danger the virus presents to our community, prosecutors in Richmond continue asking the courts to hold defendants without bond, even for misdemeanor and nonviolent felony charges,” she said in the letter. “Conditions in the jail are incompatible with the current state and federal guidelines aimed at reducing the spread of the COVID-19 virus.”
Richmond Commonwealth’s Attorney Colette McEachin said her office is aware of the impact of the coronavirus on the entire criminal justice process.
“I anticipate that the courts will receive many motions from criminal defense attorneys asking that their client be released from the [Richmond City] Justice Center, even though that is a secure environment with medical facilities and staff, and which currently has no diagnosed cases of the virus,” she said.
“Public safety is our primary concern when considering our position on bond,” McEachin said. “Against that backdrop, we will evaluate such motions on a case-by-case basis with appropriate consideration of current public health concerns.”
Virginia law assumes that any person charged with a misdemeanor will be released on a summons, subject to certain exceptions, and will therefore not be jailed pending trial, McEachin said.
Most hearings and trials have been suspended by an emergency order from the Virginia Supreme Court. The order caused some confusion as lower courts appeared to take the guidance differently. Some closed down completely, which the Supreme Court had to later clarify was not allowed since people are still being charged with crimes while the courts operate at limited capacity.
If a trial goes forward during this time, and a person is convicted, and not a threat to the community, McEachin said her office would “agree to all suspended time or home electronic incarceration or a delayed report” to the jail.
“It is also the first long-term disruption of the court system we have ever seen,” said veteran criminal attorney Steven D. Benjamin. “The courts will continue to function, but only as necessary. The court, and the criminal justice community, understands the importance of diminishing jail populations as much as possible for the duration of this health crisis.”
Betty Layne DesPortes, Benjamin’s law partner and forensics expert, said it is hard to say whether releasing more incarcerated defendants heightens any risk to the public “because these are not normal societal conditions so any prior risk assessments simply are not applicable,” she said. “People have been ordered to essentially ‘shelter in place’ so everyone’s freedom of movement is curtailed. What effect that will have on crime rates generally remain to be seen.”
Meanwhile, the Virginia Department of Corrections repeated Wednesday morning that there are no known cases of the coronavirus among the prison system’s more than 30,000 inmates — many of whom are over age 60 — or staff.
But a department spokeswoman, Lisa Kinney, wrote in an email that “if we have an offender who appears to need testing, we will contact the Department of Health. We will attempt to access a test kit from our contract lab.”
“Staff are taking a screening questionnaire daily before they enter a facility,” she added. “If they need testing, they will contact their health care provider, as is the case with all state employees.”
As of Tuesday, Kinney wrote that there were fewer than 20 staff members known to be self-quarantined. “However, per guidance from the Virginia Department of Human Resource Management, we are now looking at having staff 65 and older and anyone with a chronic health condition to self-quarantine and telework (if their position can accommodate teleworking),” she added.
In a news release on Wednesday, Udi Ofer, director of the ACLU’s Justice Division, said, “Public health experts recognize that there is a heightened risk of infection for people who are involved in the criminal legal system, and that downsizing the footprint of the criminal legal system should be a part of the COVID-19 public health response.”
Gastañaga, of the ACLU of Virginia, said Wednesday that “everyone responsible for people who are incarcerated should be asking themselves what they can do to ensure that people who don’t need to be in prison or jail aren’t there and that no additional people are admitted to jails and prisons who don’t need to be.”
She said the Virginia State Parole Board should take an aggressive posture in favor of paroling anyone who is eligible while ensuring there is a humanitarian approach to providing continuing health services to those in need.
“This is not the time to parole older people and people with long-term illnesses or disabilities without assuring that they are paroled into an effective safety net,” she said.
The Virginia Department of Corrections said its epidemic sanitation plan is now in place for all facilities to ensure sanitation during the pandemic while using appropriate chemicals and approved personal protective equipment.
Previously, the department put in place screening questionnaires for offenders, volunteers, visitors and contractors. There is now a separate screening tool for employees and all employees must assess their risk on a daily basis before reporting to work, said the department.
The department said a multidisciplinary task force has been working to keep the new coronavirus from reaching the correctional facilities, monitoring COVID-19 updates and receiving guidance from the Virginia Department of Health, the U.S. Centers for Disease Control and Prevention, and the World Health Organization.
While visitation at correctional facilities has been canceled, off-site video visitation with the help of Assisting Families of Inmates, remains available. For the time being, each inmate is being given the opportunity to send two free messages per week through Jpay, the email system used by inmates.