New Orleans police on Bourbon Street after the state ordered bars and restaurants to close. //Chris Graythen/Getty Images

Despite Covid-19’s spread in New Orleans, police have recently increased arrests for nonviolent crimes. Louisiana’s top court could put a stop to that.

As coronavirus cases multiplied across the U.S. this month, states including New Jersey, Michigan, and Colorado were releasing some nonviolent offenders from jails, hoping to avoid a catastrophic health crisis in already overcrowded facilities. Meanwhile, in Louisiana, New Orleans police were still out in the streets making arrests for minor crimes — even as the state had the fastest rising rate of new Covid-19 infections.

Yesterday, the Louisiana Supreme Court asked New Orleans and all cities in the state to slow down arrests, in an effort to mitigate the virus’s spread. Louisiana Chief Justice Bernette J. Johnson sent a letter to judges across the state beseeching them to work with prosecutors, public defenders and sheriffs to “conduct a comprehensive and heightened risk-based assessment of all detainees,” and to begin releasing people who’ve been deemed low risk.

The new guidelines state that people charged with misdemeanors and nonviolent offenses should be given very low bail amounts or be released on recognizance, while those convicted of misdemeanors should be considered for release or supervised probation. For other crimes, judges are asked to “re-examine the nature of the offense and criminal history” to determine if bail amounts should be reduced. The state’s top bench is also asking police to issue summons or citations for misdemeanors and nonviolent offenses instead of arresting them “whenever practicable.”

That’s not what New Orleans police had been doing. Up until the court’s ruling, New Orleans refused to make changes to its arrest and jail policies amid the coronavirus outbreak.

“We are just as concerned as everyone else is about the spread of Covid, but we are also trying to assess each case on a case-by-case basis,” said New Orleans Police Superintendent Shaun Ferguson on a telephone press conference, reported.

Just this past weekend, police arrested a man for hosting a Second Line jazz funeral and detained him at the city jail. According to records gathered by Court Watch NOLA — a network of people who monitor and collect data on court hearings — there were 116 criminal bond hearings made in New Orleans between March 19 and 26 this year, up from 62 in the same period a year ago.

Many of the arrests were for drug possession, mostly cannabis, but also crack cocaine, heroin, or methamphetamines. One person was in court for possession of alprazolam, the anti-anxiety drug known as Xanax. The person’s bail was set for $2,000, but they were released on his own recognizance. Several arrests were for simple burglary, possession of stolen items, or unauthorized use of a motor vehicle. One person was charged with two counts of obscenity, with bail also set for $2,000.

What makes these kinds of police actions especially risky now is that they trigger a series of intimate connections between those who are arrested and those who come into contact with them as they pass through the system: the ride with police officers to the station; the officers who process them at the station; the people they are detained with; and the sheriffs, bailiffs, attorneys, and judges they may encounter as they shuffle through the courts.

Lawyers and judges have been trying to protect themselves by holding teleconferences and video conference hearings with defendants, but just yesterday, criminal defense attorney Carol Anne Kolinchak announced on Facebook that she tested positive for Covid-19. She can’t say for certain whether she contracted it through her contact with the criminal justice system, but she is concerned that it is the only thing operating while just about everything else in the city is closed.

“The biggest thing is we shouldn’t be arresting folks for low-level offenses because we’re putting their lives at risk,” Kolinchak said in a phone interview before the Louisiana Supreme Court’s order. “It just makes no sense. We simply can’t afford to put people in jail right now.”

The Brennan Center for Justice states in its latest report on appropriate law enforcement actions during the Covid-19 pandemic that the “police should issue warnings whenever possible” and serve summons or tickets for more severe infractions that don’t cause an immediate threat to public safety.

“Courts and municipalities should waive collection of all court-imposed criminal fees and fines for six months, with no assessments of new debt, and additionally, vacate warrants for all unpaid fees and fines,” reads the report. “Courts and municipalities should also clarify that interest will not accrue during this period and ensure that tax refunds are not garnished, liens are not placed on housing, and access to benefits are not denied.”

The International Association of Chiefs of Police has issued Covid-19 guidelines that state that police “agencies should carefully consider whether discretionary interactions with the public can be minimized and arrests limited to offenses that are immediate public safety risks.”

For misdemeanor offenses, the IACP suggests that police departments find “alternatives to arrests,” such as citations, summons and tickets, and it recommends the same for nonviolent felony offenses that don’t pose an immediate threat to the public. The association even advised that police limit enforcement of “non-critical concerns” such as parking violations and expired car registration tags — a situation that was recently put to the test in Pittsburgh, where, on March 17, local musician Byron Nash posted on Facebook that he received a parking ticket. This triggered a flurry of calls to and tweets at city government leaders. The following day, the city suspended parking enforcement.

Philadelphia and Chicago have also suspended most parking ticket violations. The pandemic seems to have inspired police departments in other cities to finally embrace reforms that criminal justice advocates have been pushing for years. In San Francisco, police are issuing warnings rather than arrests for low-level offenses. Nashville police were told to “maximize their discretion” in issuing citations. In Hennepin County, Minnesota, Sheriff Chief of Staff Rob Allen has instructed officers to “look for underlying issues in neighborhood disputes” instead of making arrests.

“If we put people on the phone with social workers, might we be able to defuse some future problems as well?” he said in a discussion with the Police Executive Research Forum.

This is the kind of tack that activists in organizations like the Orleans Parish Prison Reform Coalition have been pleading with New Orleans police to take for years now, to help stem the city’s world-high incarceration rates. Pointing to the incarcerated people and jail staff who recently tested positive for the virus, the coalition called on March 31 for New Orleans Mayor Latoya Cantrell to “order an arrest protocol” to stop police from making arrests for nonviolent offenses. The mayor did not, but it could be moot now. The Louisiana Supreme Court made that call.

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