Monday, April 06, 2020

Coronavirus and Texas jails

Despite his protestations to the contrary, to this observer, Governor Abbott's emergency executive order regarding jail releases seems fairly transparently aimed at thwarting bail-reform efforts in Harris County. Abbott says his order focuses only on the severity of the crime alleged. But since it does nothing to prevent people accused of violent crimes from paying bail and walking free, as a practical matter his order reinforces the tenets of the cash-bail system. Those who can pay may liberate themselves from the threat of catching COVID-19 in the county jail; poor folks will remain at risk.

If litigated, most smart folks I've heard from think the governor's order exceeded his authority, in addition to making little practical sense. Regardless, federal court orders trump it. The bail litigation over felony defendants being spearheaded by Civil Rights Corps will be the deciding factor. Judge Lee Rosenthal has already told Harris County many felony defendants must be released and is considering the fate of thousands more. Grits' prediction: In the near term, she will call the shots and the governor must be satisfied with attempting to blame the George-W-Bush-appointed judge's decisions on Democrats.

Otherwise, no other counties' jail-pop reduction efforts that I've read about addressed violent crimes, and most focused solely on misdemeanors. So other than thumbing his nose at a federal judge, to me the order served little purpose besides grabbing some tuff-on-crime media coverage during a period when the press has decided the coronavirus is the only story worth covering.

If history is any guide, jails are ticking time bombs for spread of the virus. Advice from the Jail Standards Commission seems well meaning but won't prevent the disease from spreading once it gets inside any individual unit. Jailers are at as great a risk as the jailed. It's not practical to enact social separation, so once the virus gets in, jails could quickly become petri dishes filled with disease.

In the near term, several counties have been successful at using personal bonds to slightly reduce jail populations. And a dramatic crime reduction thanks to social distancing should help lower jail intake. On the other hand, courtroom activity has all but ground to a halt, with trials postponed possibly for months. So there's a risk that those inside who cannot afford to buy their way out will be trapped there if (and when) the virus breaches the bastille walls.

Perhaps the most useful advice from the Jail Standards Commission was for law-enforcement agencies to arrest fewer people in the first place. There are seven categories of Class B and A misdemeanors for which police officers already have the authority to issue citations instead of arresting people. But most agencies, from DPS to the smallest 2-man police department - have never availed themselves of that authority. One excellent outcome from all this would be for all agencies to adopt such policies. Abbott's order, however, remained mum on the subject.

Indeed, most Texas law-enforcement agencies continue to give officers discretion to arrest for Class C misdemeanors. For the most part, these folks are incarcerated in city jails which are unregulated by the Jail Standards Commission. While no media coverage I've seen has focused on city-run lockups, Grits considers them just as or more likely than county jails to become infested with the virus. Nobody pays much attention to these backwater entities - even advocates - and as they are completely lacking in transparency, there's no real way to monitor what goes on there until the day tragedy strikes.

Travis County suspended all active warrants for low-level offenses, which seems like another effective step other jurisdictions should copy. That goes double for all Class C warrants. Indeed, arguably municipal courts and justices of the peace should simply suspend all activities related to Class C misdemeanors for the foreseeable future. In the current environment, the juice simply isn't worth the squeeze.

For additional recommendations, Michele Deitch of UT's LBJ School has created a list of best practices every jail should be following.

In some ways, these debates could end up changing the entire paradigm surrounding decarceration debates. Before this episode, while advocates may have fantasized about jailers releasing entire classes of prisoners, in practice, that only happened one case at a time. Now, more systemic approaches are suddenly on the table. If and when prisoners and jailers begin dying, public officials, including the governor, will find themselves under pressure to do more than issue politicized, unconstitutional directives.


Gadfly said...

Sidebar, as discussed at local city council tonight by a small-town police chief:

Cops are trying to minimize their exposure just like anybody else. So, they don't want to make low-level arrests.

Anonymous said...

Sadly, in spite of extremely low recidivism rates [around 5% +/-], sex offenders are not eligible for any manner of early release or home confinement and must remain incarcerated during this time of a Pandemic.

These individuals, most of them non-violent, most of them not pedeophiles, are lumped together in a one-size-fits all category and are facing the Covid-19 virus in jails while, other much more dangerous felons with much higher recidivism rates, are let loose.

In some states, in some courts, this inequity and miscarriage of justice is being addressed. But as I've known for many years now, there is no J in TDC.

Tom said...

Unless something is done, the virus is going to spread through jails and prisons like wildfire. People are jammed together, have no privacy and disease can spread like wildfire.
It's fairly common for the Harris County Sheriff to quarantine a cell block for some sort of contagious disease ranging from chicken pox to much more serious diseases. If those diseases can spread through a jail, what's going to happen with a virus where no one has any immunity?
People in prison have been convicted of crimes. Many people in county jails have been convicted but many are pretrial detainees presumed to be innocent. Regardless, except for the relatively few inmates on death row (a relatively small percentage of the inmate population), those folks haven't been sentenced to die.
And, one thing the governor and Judge Richie haven't thought about: when those inmates start getting sick, who's going to pay for their medical care? You guessed it, either the state or the county.
When you get a few dozen Harris County Jail inmates in intensive care, the costs are going to run up very quickly. It easily could blow a hole in the county's budget.

Mike Howard said...

What really gets me about Abbott's order is that it consider the severity of the offense charged, only offenses involving violence or So low-level assaults, even Class C ticket assaults would arguably fall under this. There's also no limit on how far back on an inmate's record this applies, so a decades-old assault prevents them from getting a PR bond. And of course, there is no presumption of innocence in this order: even an unproven allegation of violence triggers the order. For someone who's repeatedly displayed his ignorance of the severity of COVID-19 and it's spread, to now use the very thing he's ignored as a justification to tie the hands of local authorities to try to save lives is, in a word, disgusting.

Mike Howard said...

COVID-19 is already spreading through the Dallas County jail like wildfire. The lastest reporting locally (3 days ago) was that the number of COVID-19 positive inmates was up to 28. We know of at least one court-room bailiff who's been confirmed as exposed (waiting on test results) and an unknown number of jail staff. And of course we have no infrastructure in place to allow for inmates to appear in courtrooms remotely via videofeed, so judges' decision is left to violate due process and the right to a speedy trial or risk infection of court staff, jail staff, judges, prosecutors, defense lawyers, et cetera. This is a major failure all the way around and is risking lives.