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Dozens of cities and counties are releasing inmates to lower the risk of a Covid-19 outbreak. But some notable ones are holding out.

After publication of this story, a number of jails and prisons announced their first cases of coronavirus, including New York City, Denver, Georgia, and a medical staffer at the New Orleans jail. President Trump also said he was considering the release of some inmates, after the first case was reported in a federal prison.

In normal times, jails and prisons are uniquely well-suited for spreading communicable diseases. Since the start of the coronavirus pandemic, dozens of cities and counties have worked to reduce the number of inmates cycling in and out. Many plan to release inmates and suspend prosecution for mostly nonviolent crimes.

And yet, in places including New Orleans, one of the most heavily incarcerated cities in the world, local prosecutors have refused calls to take the steps that could avert a catastrophe outbreak. The New Orleans district attorney, backed by the city’s mayor and police superintendent, is opposing any blanket policy that would release inmates — even if it would mean mitigating a coronavirus outbreak — arguing in court filings that such a measure could spread the disease to the general public.

That view is not shared across many other major cities. In Baltimore, State’s Attorney Marilyn Mosby has halted prosecutions for all drug, prostitution, and even public urination offenses.

“Now is not the time for a piecemeal approach where we go into court and argue one by one for the release of at-risk individuals,” wrote Mosby to her staff, The Baltimore Sun reported.

Mosby also joined 30 other state’s attorneys, district attorneys, and attorneys general from jurisdictions across every U.S. region, including Hawaii, in calling for prosecutors to cease indictments and release inmates deemed nonthreatening to society. These include people charged with low-level crimes such as drug offenses, shoplifting, and driving without a license; and many who haven’t yet been convicted of anything.

The law enforcement officials signed on to a joint statement laying out rights and responsibilities for people who are in custody. The statement asks that jails stop admitting and detaining people, including immigrants and those who are undocumented, if they don’t pose a “serious risk to the physical safety” of communities. They also are asking that each inmate has access to quality health care and free phone calls to family and counsel, especially for sick and solitary confined.   

This is an agenda that most prosecutors can’t adopt on their own. “Every jurisdiction is different in terms of what the prosecutor controls or what the sheriffs or judges control,” said Miriam Krinsky, executive director of the organization Fair and Just Prosecution, which organized the statement. But, Krinsky says, “they are all working with their police chiefs, other criminal justice and public health leaders to navigate through the various categories of crimes and penalties to implement the recommendations that the joint statement raised.”

The coalition warns that the chronic overcrowding that regularly takes place in jails, state prisons, and ICE detention centers could lead to a coronavirus outbreak that “would potentially be catastrophic,” given many of these custodial facilities have already failed to contain the spread of less fatal disease outbreaks.

If these facilities become breeding grounds for the coronavirus, it will not only impact those incarcerated, but our entire community. Jails and prisons cycle large numbers of people in and out of close, unsanitary quarters on a daily basis. ... People leave immigration detention and return to communities in the US or to vulnerable refugee shelters and encampments along the border. All of these facilities rely on services and support from vendors and medical professionals, employ staff who come and go, and appropriately provide access for legal counsel and family members to visit.  

Medical experts have been raising flags about the potential for a prison-based coronavirus catastrophe since the outbreak started.

“The way jails and prisons are designed and administered promotes the spread of communicable disease,” former NYC Correctional Health Services chief medical officer Dr. Homer Venters told the Brennan Center for Justice. “Generally speaking, these are unsanitary settings, and there is not ample access to handwashing. Most of the terms that we have learned in the last few days, like social distancing and self-quarantine, are completely not applicable in these settings.”

Among the signers of the letter are San Francisco District Attorney Chesa Boudin, Dallas County District Attorney John Creuzot, Durham County (North Carolina) District Attorney Satana Deberry, St. Louis Circuit Attorney Kim Gardner, and Philadelphia District Attorney Larry Krasner. These are mostly prosecutors who’ve made names for themselves by pushing for policies that would reduce arrests and incarceration.

However, they don’t represent the only cities adopting decarceration and prosecution-suspending practices. In Brooklyn, District Attorney Eric Gonzalez announced that his office will stop prosecuting low-level offenses. Seattle District Attorney Dan Satterberg said on Twitter that he’ll file “only priority in-custody violent crimes” for the next two weeks, after which he would file motions to continue arraignment for other felonies for 30 days.

Miami-Dade State Attorney Katherine Fernandez Rundle announced this week that she would begin “to develop a process to release misdemeanor & nonviolent felons,” but only after her primary rival and a slew of criminal justice reform activists pushed her to do so. In Pittsburgh, District Attorney Stephen A. Zappala Jr. is acquiescing to demands from the Coalition to Abolish Death By Incarceration and the Abolition Law Center to release certain inmates from the county jail.

Meanwhile, local jails in Chicago, Louisville, Austin, Virginia Beach, and Omaha have all begun releasing nonviolent offenders and pre-trial detainees. An even longer list of local and federal court systems have postponed pending trials until further notice.

One place that’s not seeing a ton of action is in Mississippi, the site of several uprisings and deaths in recent months for reasons associated with the deplorable conditions of the state’s prison. On March 16, advocates from the Mississippi Prison Reform Coalition, the ACLU of Mississippi, and the Mississippi Center for Justice sent a letter to Governor Reeves imploring him to scale back incarceration and detention activities.

“If you have not already, we ask that you immediately reach out to the Mississippi State Department of Health (“MSDH”) to develop plans to address the virus in all Mississippi facilities that house prisoners or detainees, including Mississippi Department of Corrections facilities, county jails, and juvenile detention centers,” reads the letter. “This is an urgent matter. Having an appropriate, evidence-based plan in place can help prevent an outbreak and minimize its impact if one does occur. Not having one may cost lives.”

In New Orleans, some inmates have been released on a piecemeal basis, thanks to a campaign led in part by New Orleans’ public defenders. They have been raising money to bail out as many people as possible from jail, which is as much about reducing risks of spreading coronavirus as it is about implementing reforms that they have been working towards for years. They have also been arguing on a case-by-case basis in court that particular defendants should be released due to the coronavirus. But none of these efforts have been sufficient to release as many people as could be released by adopting policy changes like the ones called for in the joint statement — a step Orleans Parish District Attorney Leon Cannizaro has been unwilling to take.

"It is disheartening that the Orleans Public Defenders would seek to exploit this public health emergency by asking our police and courts to turn a blind eye toward criminal conduct,” New Orleans district attorney spokesman Ken Daley told Nola.com. “We review bond-reduction motions on a case-by-case basis, and oppose them when appropriate in the interest of public safety. This is hardly a time to encourage lawlessness.”

Cannizaro’s office has argued in court filings that coronavirus is a reason not to release inmates, because it could perpetuate the disease’s spread to the general public, according to The Lens NOLA.

As is the case with all local jails, many of the people sitting in the Orleans Parish Prison haven’t been convicted for any crimes; they are only awaiting a hearing or arraignment. During Hurricane Katrina, inmates were also held in the jail too long, as the disaster worsened, which led to preventable deaths — or rather, mysteriously disappeared prisoners.

Speaking with inmates who were trapped there during the floods, the ACLU wrote in a report on the aftermath: “The picture that emerged from all of these accounts was one of widespread chaos, caused in large part by inadequate emergency planning and training by local officials, and of racially motivated hostility on the part of prison officials and blatant disregard for the individuals trapped in the jail.”  

The criminal justice systems in New Orleans and Mississippi now have an opportunity to not repeat the mistakes made during Hurricane Katrina. And, they now have political cover from a wider prosecutor community to change their jailing policies.

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