The coronavirus pandemic is accelerating the nationwide drive for bail reform, but in the process it’s also strengthening opposition from tough-on-crime lawmakers and representatives of the bail industry.
Justice reform advocates have called for jails to release most, if not all, pretrial detainees—not only for their own safety, but also to protect the broader community that could catch the virus from correctional officers and other staff if more jails become outbreak vectors.
But opponents argue that sweeping release measures pose greater risks for safety than the public health benefits they might provide.
At least 1,324 confirmed coronavirus cases have been tied to 41 prisons and jails, including at least 32 deaths, according to numbers compiled by the New York Times on April 8. A significant number of those cases, which include both inmates and jail employees, are linked to Chicago’s Cook County Jail and New York City’s Rikers Island. These numbers, jail officials admit, are likely a vast undercount because testing is limited only to those who show severe symptoms.
Activists cite these numbers as proof that mass releases are needed—but who has the final say about whether or not to release pretrial detainees has been a source of confusion from state to state.
In Massachusetts, the judiciary has set broad standards for releasing pretrial detainees who face nonviolent charges. The Indiana governor and state legislative leaders in that state have asked county jails to do the same.
In many other jurisdictions, like Nashville, arguments over who should get released are playing out at the local level between public defenders and prosecutors.
Jail populations are declining across the country as sheriffs, prosecutors, and judges find ways to release people who are currently being held on bail, drop minor pending charges, and issue summonses instead of arresting people.
Some places, like New Jersey, have issued sweeping release orders for hundreds or thousands of people at a time. Other jurisdictions, like Cleveland, have prioritized the release of medically vulnerable people from jails.
These efforts are transforming jails across the country, but they also raise significant questions for stakeholders: Should all pretrial detainees be let out, or just people accused of nonviolent crimes or misdemeanors? Should there be judicial review before anyone gets released?
Should special considerations be given to those more vulnerable to coronavirus, like pregnant women, the elderly, and those with underlying medical conditions?
Most criminal justice advocates are clear about their stance: everyone in pretrial detention should be released—in part because if they aren’t, innocent people could start dying of coronavirus in jail. Of the roughly 631,000 people held by local authorities in jail each year, 74 percent haven’t been convicted.
Zoë Towns, the senior criminal justice reform director for FWD.us, an advocacy organization, said that the policies they’re fighting for during the coronavirus pandemic are the same they’ve always been.
“The reforms people are calling for now are not novel ideas for this moment,” she said.
“What’s changed is a broader understanding from people outside the reform community as to just how urgent this is.”
Before the coronavirus pandemic, Towns had been working on bail reform in New York. In 2019, the state radically changed its laws to limit the number of crimes for which defendants could be held on bail. But those changes were in place for less than 90 days when the state legislature revoked most of them in an addendum to their budget reconciliation in early April, a move that frustrated and baffled criminal justice reform advocates.
During the time when the new bail rules were in place, the pre-outbreak jail population dropped significantly, which Towns said led to significantly fewer people being exposed to coronavirus behind bars.
“Look at Rikers Island. That’s proof this is so necessary,” she said. “We were extraordinarily alarmed that the governor and state legislature were so insistent [on rolling back reforms] at the risk of exposing so many more people to COVID in jail.”
In late March, pressure on New York City Mayor Bill de Blasio led him to release 900 detainees from the city jail in an effort to further reduce the population there. A day later, the Gov. Andrew Cuomo released about 240 people incarcerated at Rikers Island on parole violations.
But even with the reduced population, coronavirus has flourished at the city’s jail.
By April 8, there were 854 positive cases among inmates, correctional staff, and health care workers. At least one inmate and seven staff members have died, and 59 percent of the jail population is now in quarantine.
Advocates in some other states have not been able to convince officials to approve mass releases.
The Battle in Texas
Another major battle over pretrial release is playing out in Texas, where Gov. Greg Abbott issued an executive order restricting the release of people in jail who are accused or previously convicted of violent crimes unless they pay bail.
Misdemeanor judges in Harris County, who have been operating under a federal consent decree since their bail practices were found to be discriminatory against poor defendants, have partnered with the ACLU to sue Abbott.
They say his order is an attempt to overrule the consent decree as advocates use its provisions to ask for the emergency release of thousands of people on personal bonds, a no-cost release mechanism that might include conditions like check-ins and drug tests. Texas Attorney General Ken Paxton argued Abbott was within his right to issue the executive order because Texas law “furnishes the Governor with sweeping authority to protect the public from disasters.”
‘5,000 Bail Systems’
The tension between state and local governments in Texas and elsewhere is an enduring problem of bail reform, said Kellen Funk, a professor at Columbia Law School.
“We don’t have an American bail system. We have 5,000 American bail systems, each with a slightly different configuration for the division of power,” Funk said.
“Texas puts a lot of power in the hands of the local judiciary, and it’s entirely unclear if Abbott can make that call. The places that have had more clear movement are those that have strong, centralized judiciaries.”
One example is California, where the judicial council, the body in charge of setting rules for the state’s court system, this week set bail at $0 for most misdemeanors and certain low-level felonies, clearing the path to release those in jail who couldn’t pay bail and preventing time behind bars for many newly arrested people.
But even in states that have made significant steps towards broadening pretrial release, some criminal justice researchers say that California is simply starting to catch up to other places in the world that use pretrial detention much more sparingly.
“It’s dramatic, but to be clear, we’re just releasing people who are legally innocent and facing charges that in other countries wouldn’t even result in jail time if they were convicted,” said Colin Doyle, a staff attorney at Harvard Law School’s Criminal Justice Policy Program.
“We’re starting from a skewed standpoint. There should be a really good reason, especially in a pandemic, as to why you should hold someone pretrial.”
Others aren’t so sure.
Threat to Law and Order?
Jeff Clayton, the executive director of the American Bail Coalition, said that sweeping state orders like the one in California are overly broad. He prefers a method akin to what’s being employed in Pennsylvania, where the state Supreme Court ruled against a blanket petition to release all pretrial detainees who are being held because they cannot pay bail.
The court instead told judges in each county that they should work with jails to ensure that they can follow CDC safety guidelines and, if not, consider releases.
“These decisions need to happen at the local level where judges can sort through cases and have hearings,” Clayton said. “Otherwise, law and order might start breaking down a little bit.”
But criminal justice advocates and even some sheriffs worry that the real public safety risk is the spread of disease in jails. With courts shut down and police in some jurisdictions making new arrests for charges associated with coronavirus, like flaunting social distancing guidelines or stay-at-home orders, the pretrial population could continue to swell.
Court officials are scrambling to find ways to hold virtual hearings and electronically release decisions, while defense attorneys raise concerns that it has become much more difficult to meet with their clients as jails restrict visitors.
Attorneys also point to research that found that virtual hearings, while better than nothing in the current moment, can end up dehumanizing defendants and lead to longer jail stays and higher bail amounts. Some criminal justice researchers warn that emergency measures put in place now, like virtual hearings or using ankle monitors as a condition of release, will remain in place after the crisis has passed.
Parallel to 9/11
“The parallel here is 9/11,” said Doyle. “A handful of emergency measures could stay indefinitely.”
In many places, though, attorneys aren’t waiting for courts to go virtual. Federal courts are being flooded with hundreds of cases from civil rights groups and individual defense attorneys, all asking for emergency measures to be taken to release inmates locked up on both federal and state charges.
The barrage of cases is not unlike what occurred in the wake of the 2017 travel ban on several Muslim countries, when lawyers filed thousands of cases from airports to see what would stick, said Funk.
“We’re still in the early days of seeing who will come up with the theory to thread the procedural needle in all the right ways,” he said. “It’s a test of our federal system to see if we have institutions that can offer relief when local officials have been paralyzed by their own government structures or state executives.”
With the surge of momentum on the issue, criminal justice stakeholders are keeping a close eye on how the changes implemented now could impact bail reform movements going forward.
Clayton said he thinks pro-reform groups in the future will point to studies of crime rates after mass releases to prove that letting people spend the pretrial period at home doesn’t endanger public safety—studies that he said will be useless.
“The whole system has broken down right now, so that will prove nothing,” he said.
“People are staying indoors, and the police are not looking for crime. It’s such an unusual circumstance that it just doesn’t apply.”
Towns disagreed and said that studies could be done comparatively across jurisdictions with similar crime metrics. That would allow researchers to see the effect of choosing to release pretrial detainees or not in places that employed similar recommendations for social distancing or staying at home.
She’s hopeful that data could “support a broader understanding” of the bail reform movement going forward. Doyle was more cautious in his assessment, saying that after the emergency he suspects there could be a “strong push to return to normal,” but he’s hopeful for the opposite.
“Coronavirus has undoubtedly made jails something that can’t be ignored,” he said.
“I hope this will cause us to question using incarceration as our default mode of dealing with problems.”
Additional Reading: San Diego Prosecutor Objects to Jail Releases
Emma Coleman, a 2019 John Jay/Arnold Ventures Justice Reporting Fellow, is the assistant editor for Route Fifty. This is a condensed and slightly edited version of a story that appeared this month. The full version can be accessed here.