Inmate depopulation is critical during Covid-19 says Fairfax criminal lawyer

Inmate depopulation is necessary for everyone’s health during the pandemic, says Fairfax criminal defense lawyer

Inmate depopulation is making inroads at various levels during Covid-19, with the realization that doing so not only protects the health of inmates, but also of jail and prison employees, and the general public who will encounter inmates upon the inevitable release of those not serving life sentences. As a Fairfax criminal lawyer, I know that critical to this depopulation effort have been the too-often unsung criminal defense lawyers — heavily represented by public defender and court-appointed lawyers, along with their non-lawyer assistants — toiling client-by-client to keep them out of jail pretrial, to obtain a second look for those initially denied bail, to shorten their sentences or get them home detention, and to defer sentencing dates. On the macro level helping this effort include the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and Families Against Mandatory Minimums, and their staffmembers and volunteers working for this depopulation. I deeply thank them all.

Stay at home orders underline the high risk to inmates from Covid-19

As much as the non-incarcerated public suffers socially and economically from gubernatorial coronavirus fiats closing much of society and the economy, jail, prison and immigration inmates suffer even more, lacking opportunities that non-incarcerated people have to practice vast physical distancing and sufficient hygiene, nutrition, and health maintenance to limit their risk of contracting the Covid-19 virus. On top of that is inmates’ enhanced psychological suffering from knowing their increased risk of catching Covid-19.

For instance, this very week two inspectors appointed pursuant to a federal lawsuit filed by the Public Defender Service and ACLU reported a bleak picture at the D.C. jail of lack of enforcement of social distancing, and Covid-19-positive inmates denied showers, access to their lawyers, and change of clothes and linens.  Over four dozen jail inmates have tested positive for coronavirus, with one inmate death from the virus. A jail employee union has even filed a lawsuit over the dangerous situation. All of the foregoing items are reported here. As just another example, federal inmates are also showing no slowdown of contracting Covid-19.

Tough on crime and on immigration philosophy does not justify preventing inmate depopulation

The overly-facile “you do the crime, you do the time” phrase was parroted to me in 1990 when I bumped into former D.C. police chief Maurice T. Turner Jr., when he was campaigning for mayor as a Republican, in response to my telling him of the need for reversing all the harsh sentencing of criminal defendants. That phrase never suffices, and certainly not as a response to efforts to depopulate jails during the coronavirus.

Similarly, Donald Trump’s push for toughness on immigration law violations does not justify not depopulating immigration detention centers by imposing pre-hearing release conditions on immigrants rather than keeping them locked up. Moreover, further immigration detention can be reduced by delaying deportation and detention hearings to when the coronavirus has further dissipated, so as not to increase the immigration detainee population.

Inmates must get confidential communications with their lawyers

Contact visits between inmates and lawyers have been replaced by jails with remote phone communications and at-jail meetings separated by plexiglass. Nothing beats a contact visit between a criminal defense lawyer and his or her client. Unfortunately, not all jails have non-contact meeting areas that are confidential from other lawyers meeting their clients in the same large visiting room. With lawyer phone calls to inmates, even if the phone line is not recorded (and not all jails were equipped for non-recorded lawyer phone calls pre-coronavirus), if the inmate is not in a private room during the phone call, then the inmate is being heard by other inmates or jail/prison employees, while speaking with his or her lawyer. The Sixth Amendment and justice demand better .

Some prosecutors and judges breathe more meaning than others into our all being in this Covid-19 crisis together

The criminal justice system in Virginia and beyond includes chief prosecutors of the more progressive bent (for instance in Fairfax, Arlington, Loudoun counties) whose ears and efforts are more open to inmate depopulation to varying degrees, than the commonwealth’s attorneys who repeatedly lean on overly facile tough-on-crime stances. The judges also run the gamut to adjusting more positively and negatively (and quickly or not) to requests for depopulation. Prosecutorial and judicial support for such depopulation is not a sign of weakness rather than of good sense about the correlation between inmate population and reduced Covid-19 risks for the entire population.

The prosecutors and judges supporting inmate depopulation — together with public appreciation for such efforts — will hopefully inspire those who are lagging behind in that effort. The Arlington County, Virginia, Circuit Court judges will hopefully amend their March 10, 2020, sua sponte order that delays (at best) joint prosecutorial and defense efforts to ameliorate the plight of criminal defendants and inmates.

Depopulation also makes fiscal sense

Incarcerating inmates is expensive enough as is. Keeping inmate levels steady rather than reducing them, will only increase incidents of Covid-19, with the attendant higher financial demands of caring for sick inmates and taking steps to shield remaining inmates from contracting coronavirus. This is another reason why jail and prison depopulation makes good sense and is not a soft-on-crime matter, but a wise response to this pandemic that we need to end now.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, and DUI prosecutions. Call 703-383-1100 for a free confidential consultation with Jon Katz about your court-pending criminal or DWI case.