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THE DEATH PENALTY

The coronavirus pandemic turns every arrest into a potential death sentence

Man in handcuffs behind prison bars.
public domain
Arrest punishable by death.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Palm Beach Countys main jail overlooks the $44 million Trump International Golf Club in West Palm Beach, owned by US president Donald Trump. The jail has never been pleasant, despite its view of the greens, but it’s especially terrifying to be held in the heart of Trump country as the novel coronavirus spreads.

“There seems to be no motivation from the state attorney or law enforcement to address the human needs this crisis presents to our clients,” the elected public defender Carey Haughwout told Quartz. “To date neither the state attorney nor the sheriff seem concerned about incarcerating people during this difficult time.”

So far the public defender’s office has managed to keep the courts open for bond hearings. But Haughwout says she’s getting pushback. While arrests are plummeting in nearby Broward County and the sheriff there has changed his approach to law enforcement, issuing civil citations to limit intakes (and the spread of coronavirus), in Palm Beach a recent drop in arrests has been far less precipitous.

That means people are still being brought in to institutions that are essentially breeding grounds for disease, the punishment for petty misdemeanors having suddenly increased from loss of liberty to risk of death by infection.

Haughwout’s office is trying to protect the county’s most vulnerable population, people who were already living precariously close to the economic and medical edge, indigent and unable to afford adequate health care before the pandemic. Now, dockets have been consolidated, which means there are too many people, too close, in overloaded courtrooms with only one judge. Meanwhile, lawyers are risking their lives to represent inmates at the jail, where only minimal health precautions are being taken.

“The Sheriff ‘screens’ any new inmate by checking temperature and asking basic questions. But this doesn’t address the many who may be showing no symptoms but can transmit anyway. The inmates have no ability to maintain social distancing and no access to disinfecting soap on a regular basis,” Haughwout said. “Their visitation has been cut off so they are left with an expensive phone system to check on the well-being of their families. They are scared—as any of us would be who had no control over the safety of their environment. But I’m not sure the accused are viewed ‘like any of us.'”

3,000 criminal justice systems

The Palm Beach approach is in stark contrast to other places in the US, many of which are rising to the occasion, recognizing the need to act swiftly to contain the spread of Covid-19 to save lives.

In New Jersey, for example, a judge this week issued an order that will affect about 1,000 of the most vulnerable inmates by temporary releasing them. In San Francisco, the district attorney worked with the public defender to provide guidance on minimizing intakes and maximizing compassionate release of vulnerable populations. In Los Angeles, the sheriff is releasing people with less than 30 days left to serve on their sentences. In Montana, the chief justice issued an advisory letter providing guidance to courts on coronavirus containment.

Haughwout and her lawyers, meanwhile, have to litigate every single release request individually—hoping the judge who happens to be assigned the case will understand the plight of an individual inmate—but are utterly unable to address the overwhelming and interconnected problem of inmate health as a whole.

Udi Ofer, national director of the American Civil Liberties Union’s justice division, says it’s impossible to quantify just what is happening in jails and prisons because there are so many criminal justice systems within the US, a nation that incarcerates more people per capita than any other country in the world. The federal government, states, counties, and cities all detain folks and each place has a different approach, which is why Ofer says that there are 3,000 criminal justice systems nationwide for all practical purposes.

The ACLU last week wrote to federal, state, and local authorities urging them to protect people in custody and to release those who are most vulnerable. Following guidance from public health experts, the organization is focused on getting state governors to issue directives that unify approaches across localities in order to save the most lives and expose the fewest people to deadly disease. The organization is also demanding greater transparency from authorities about the rate of infection within jails and prisons so that the extent of the danger inmates in any given place actually face can be accurately assessed and addressed.

Mass incarceration was already a public health danger, a fact that experts have long recognized. “But with the coronavirus pandemic everything now has taken on a greater sense of urgency,” Ofer said. “The ACLU is asking governors ‘who can come home today?'”

But compassionate release programs also raise questions. Does everyone have somewhere safe to go? Will people be taken back into their homes after having spent time in confined spaces where social distancing and good hygiene are impossible?

The ACLU is also advocating for support upon release to ensure that the vulnerable are cared for. Still, in a time of overwhelming woes, that may be a difficult goal to accomplish.

Epidemics and epiphanies

Ofer notes that there are alternatives to incarceration that his organization has long advocated for—like issuing civil citations for minor offenses instead of making arrests—that are especially important to adopt right now. Liberty issues have become matters of life and death.

The negative consequences of arrest disproportionately affect the poor. Because so many people are detained before trial and cannot afford to bail out of jail, the indigent end up spending a lot longer in custody than the well off simply because they cannot afford to buy their pretrial freedom. Meanwhile, the majority of people being held in jails at any given moment in the US have not been proven guilty of a crime and are thus innocent under the law. However, if they have no money, they simply stay locked up until their case is resolved even if they are eligible to bond out.

“There are hundreds of thousands of people who can’t afford to get out of jail,” Ofer explained. They will now be exposed to disease simply because they lack money, possibly paying for poverty with their lives.

In the long term, Ofer hopes that some of the shifts more enlightened localities have adopted in the face of the pandemic will become common practices once order is restored to the world (assuming that ever happens). But he is concerned about the short-term consequences of the health crisis on these thousands of criminal justice systems that were already broken and in need of reform.

Court dockets are clogged. Jails and prisons are overcrowded. Delays caused by court closures will overwhelm systems that were straining to manage the problems they already had. Haughwout is certainly concerned about her clients hanging in limbo. After all, justice delayed very often means justice denied.

“Public opinion polls show this is a bipartisan issue. People recognize that we need to reduce jail and prison populations,” Ofer says. “Now we just need our officials to step up to the plate.”

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