Topic: COVID

Necessity is the mother of invention, and cities and counties participating in the Safety and Justice Challenge have learned a great deal from measures taken to save lives during COVID-19. What’s more, many of these lessons will prove valuable in the years ahead, both as the world continues to fight the virus and afterwards.

With strategies to reduce jail populations already in place and key decision-makers already at the table working together, many SJC sites were better positioned to respond to the crisis than jurisdictions not already engaged in these efforts. For example, sites deployed new or existing Population Review Teams to identify those who could be quickly and safely released to prevent spread of COVID-19 in jails and the broader community. The stakeholder collaboration and evidence-based strategies already in place through the SJC allowed many sites a head start in mitigating the spread of COVID-19.

Without exception, all the cities and counties involved in the Safety and Justice Challenge managed to substantially reduce their jail populations during the pandemic, without jeopardizing public safety. In many cases, average daily jail populations reached levels lower than at any point in the last quarter century. For example, Buncombe County in North Carolina reduced its jail population by 42% at its lowest point, San Francisco County, California, by 35% at its lowest point, and Allegheny County in Pennsylvania by more than 30% at its lowest point.

Without exception, all the cities and counties involved in the Safety and Justice Challenge managed to substantially reduce their jail populations during the pandemic, without jeopardizing public safety.

However, local justice systems had varying levels of success in tackling the virus despite testing and control measures. East Baton Rouge Parish in Louisiana, for example, saw only one positive COVID-19 test at its pretrial detention facility. In Buncombe County, there have been no COVID-19 infections in the jail, largely due to a strict initial quarantine program and the ability to keep all incarcerated people in single cells (one person arrived at the jail with COVID-19 but did not pass the virus to others). Among detainees in Cook County, Illinois, a total of 1,096 detainees have tested positive as of December 11, 2020. Many people booked into the jail are coming in with the virus, rather than catching it inside the jail – further demonstrating that reducing jail bookings is critical to preventing spread of the virus.

How did cities and counties in the Safety and Justice Challenge respond to COVID-19? And what have we learned?

1. Reducing Arrests and Jail Bookings, Increasing Releases Helped

In cities and counties participating in the Safety and Justice Challenge across the country, justice system actors worked together to reduce the number of people being booked into jails, and to prioritize case review for people in custody so that they could be released, where possible. They also worked together to prioritize release of people with vulnerable health conditions, who could safely be released pretrial or while serving their sentences. There has been collaboration with police to issue summonses in lieu of arresting people on nonviolent misdemeanor charges, when safe to do so. Many cities and counties even suspended arrests for some felonies and for certain warrants which could be resolved in the field. In Clark County, Nevada, prosecutors aggressively screened cases and quickly diverted or dismissed those that were not likely to go forward or that didn’t present a threat to public safety.

In Multnomah County, Oregon, more people were released on their own recognizance. In New Orleans, the JFA Institute found that defendants released from custody had very high overall success rates — nearly 80% have no “failure to appear” or re-arrest. And 92% of defendants in the lowest risk category attended all required court appearances. In Allegheny County, three-month rates for people reentering the system who had been released at the start of COVID-19 were slightly lower than comparable three-month reentry rates of people released from jail during the same time period in 2019.

In Minnehaha County, South Dakota, justice system actors achieved a 53% reduction in arrests and jail bookings in March 2020, compared to the previous month. They attributed it to increased use of cite and release practices, and to setting lower bonds and operating a lower fine schedule. New Orleans Police Department reduced arrests for non-violent charges by 63% compared to the same period in 2019, with overall arrests down 59%. Lake County, Illinois, reduced arrests by 27%. The Baton Rouge Police Department expanded its cite and release policy to include traffic offenses, nonviolent misdemeanors and low-level felony charges.

2. Changes in Bail Protocols Have Proven Successful in Safely Reducing Jail Populations

Cities and counties across the country made substantial changes to their bail protocols during COVID-19. For example, The Los Angeles County Sheriff, with the support of the Public Defender and other agencies, instituted a policy of releasing anyone with $50,000 bail or less, in specified cases. The State Superior Court also reset bail amounts under the existing bail schedule to $0 bail for designated offenses. While the changes expired as part of the state’s emergency bail order in June 2020, Los Angeles County has extended this order locally to remain in place as part of the ongoing pandemic response. Clark County, Nevada shifted the burden of proof in bail hearings, requiring prosecutors to show why a defendant must be kept in custody. St. Louis County connected people in jail who couldn’t afford their bail with The Bail Project to help secure their release.

Despite some naysayers, we know this type of bail reform does not put the public at greater risk. New academic analysis shows Chicago area bail reform efforts since 2017 have not increased new criminal activity. Creative and evidence-based steps like these paved the way for other jurisdictions to follow suit and respond to the pandemic.

3. Technological Tools Kept Systems Operating

Just as new apps like Zoom, Microsoft Teams and Slack have changed working life during the pandemic, technological innovations have transformed justice systems operations in the era of social distancing. Many sites began holding video and telephone appearances in their courtrooms, rather than in-person hearings. In Palm Beach County, Florida, a new text message court reminder system reduced failure to appear rates from 8% to 3%. St. Louis County bought tablets for the jail so that attorneys could conduct video meetings with their clients more easily, expanding on the Public Defender’s existing initiative to represent people at their first court appearance.  Probation and Parole Departments also instituted virtual check-ins that aided in reduced revocations back to custody.

4. A Focus on Behavioral Health Improved Reentry Success

Cities and counties have continued to invest in keeping people from being rearrested or being arrested in the first place. They have provided housing, food, medication, transportation, and other service referrals for people being released from jail so that they don’t cycle back into the system. Recognizing the importance of meeting these social services—which can be a challenge, particularly in larger jurisdictions—sites are investing more deeply in reentry resources. Palm Beach County, for example, has provided permanent supportive housing with wraparound services for 12 people experiencing homelessness with behavioral health challenges as part of a Safety and Justice Challenge-funded pilot program. In the two-year period before they were housed, these individuals had collectively been arrested 64 times and spent 704 days in jail.

5. Reducing Racial and Ethnic Disparities Will Require Renewed Commitment

COVID-19 further exposed racial inequities in America’s jails. In many cases, we saw racial disparities increase across participating cities and counties as a larger percentage of white people were released from jail than Black people. In Palm Beach County, Florida, for example, white people were twice as likely to be released compared to Black people from February to July 2020. In Buncombe County, the portion of jail population that is Black increased steadily from 23% in February to a high in July of 33%, compared to a county-wide population rate of around 8%.

How We Can Build on Our Momentum

Several cities and counties plan to build on changes they have made during COVID-19 to keep any substantial rebound to a minimum and continue releasing more people with low-level charges. For example, Los Angeles County plans to close its Men’s Central Jail within a year, reducing more than 3,000 beds from its pretrial capacity. San Francisco has already closed one of its jails. Meanwhile, Clark County, Nevada plans to keep its emergency measures in place until July 2021 and use the data collected to move forward from there.

—Wendy Ware is the President of the JFA Institute, which works in partnership to evaluate criminal justice practices and design research-based policy solutions.

Court systems around America are learning important lessons about the value of offering remote hearings in response to COVID-19.

We at the Pretrial Justice Institute (PJI) believe the success of these changes shows that courts can provide access to justice in new ways—and it debunks the longstanding myth that the responsibility for court appearance falls only on the shoulders of the accused. Providing more flexibility can go a long way in improving court appearance rates.

Early data from the National Center for State Courts (NCSC) shows that court appearance rates increased with the use of remote hearings during COVID-19:

• In parts of North Dakota, criminal warrant hearing appearance rates went up from 80 to nearly 100 percent, with failure to appear rates dropping significantly across all hearing types.
• In New Jersey, appearance rates in criminal cases rose from 80 percent to 99.7 percent since mid-March, when the courts began to conduct virtual hearings.
• And in Michigan, appearance rates rose across all cases from 89.3 percent in April 2019 to 99.5 percent in April 2020. When asked about this new way of doing business, Michigan Supreme Court Chief Justice Bridget M. McCormack told the NCSC that the expansion of remote hearings has launched a fundamental change in the way courts do business in the state, and said, “we are not going back.”

That said, I worry that as the country reopens, this newfound court flexibility could fade, especially if the volume of arrests returns to pre-COVID levels. Those of us working in systems all have a role to play in ensuring these new ways of operation become standard practice. Court appearance rates are amongst the most relevant, practical and useful measures for success, along with liberty rates and public safety. The early data suggest that more court flexibility could improve all these measures.

Perhaps now is also a good time to ask ourselves: In whose interests were the changes in flexibility predominantly made?

When everything shut down in March due to the pandemic, the judiciary worked around the clock to make the shift to more remote hearings. If we are honest, this decision was likely to ensure the health and safety of court employees—people who have more privilege and power in the legal system than people accused. This shift could have happened pre-COVID to make appearance easier for people impacted by the system, but it didn’t. Why is that?

Is it possible that we didn’t ever push for more remote court hearings because the process is the punishment? Something that would have benefited the accused wasn’t tried until it benefited those working in the system. That’s the teachable moment here.

At PJI, we firmly believe there’s no pretrial justice without racial justice. The more we have reflected on our collective approach to pretrial reform over the years, we realized that we were overly focused on technical fixes and our impact on systems was limited. We weren’t having in-depth, look-at-yourself in the mirror conversations about systemic racism, power and privilege.

Today, as we all examine court practices through these lenses, it’s worth reminding ourselves who has had the power all along to imagine and implement changes that would raise equity and access to justice. It is many of us who are at the table as part of the Safety and Justice Challenge.

Justice systems that view their purpose and practices through an equity lens will keep using remote hearings if requested by the accused, offer court date reminders to all people, and provide flexibility around transportation, childcare and the ability to change a court date if a person has to work. They will ensure that remote hearings don’t have unintended consequences, like limiting access to counsel. However, systems that continue to see their work through a white supremacy lens will focus on the comfort and convenience of the court, measuring the accused’s respect for the law with arriving on time for a court appointment.

We need to move away from viewing pretrial systems as paternalistic, and instead see them as collective and collaborative. We need to innovate so that everyone wins.

—Sue Ferrere is the Director of Impact at the Pretrial Justice Institute

As New Orleans’ criminal legal system has risen to the challenge of the Coronavirus, we’ve brought resilience lessons we learned during Hurricane Katrina to bear:

Knowing Where People Are

After the storm, thousands of people went without legal representation for months because we simply couldn’t track people. There were two tourists from Ohio, for example, who had been arrested on public order offenses and spent more than a month in jail.

This time around, we have a case management system, and our office is funded, albeit still so poorly that we are being forced to furlough some attorneys. But we have been able to immediately track people and start litigating to help the most vulnerable. It’s a huge difference from the ad-hoc tracking system we were using in 2005.

Seizing the Moment To Reduce Our Jail Population

Our pre-Covid jail population was 1,052, and we’ve since reduced it to 799—a level not seen in New Orleans since the 1970s, although if we were incarcerating people at the international rate, we’d have just 137 people in our jail, so there is still a long way to go for our criminal legal system reform efforts.

Thanks to our tracking system we’ve been able to prioritize getting the most vulnerable people out of jail. Initially, we tried using immediate release orders, which we had developed after Katrina and which were common practice whenever a storm was coming. Since we weren’t facing a hurricane, we had to show why this crisis warranted emergency releases. But we could litigate straight away.

Building Coalitions and Constituency For Reform

When you have audacious goals for criminal legal system reform, three things get in your way: resources, processes, and values. Values are the most difficult to change.

New Orleans has been the recipient of more than $3.5 million in funding from the Safety and Justice Challenge since 2015, with the goal of reducing the city’s jail population, and we were already making good incremental progress.

There’s no doubt that the COVID-19 crisis has spurred that huge further reduction in our jail population, but it’s the coalitions and relationships we’ve been building for some time that were instrumental in helping us spring into action, this time around.

A big lesson we learned after Katrina was that if you look alone, then folks with the power to do something will readily ignore you, whereas if you have constituency, then your chances for success go up exponentially.

Some of the criminal reforms that came out of Katrina had been thought of as too ambitious before. And I’d encourage reformers to view bold future reforms in a similar light, now, in the era of Coronavirus, including bond reform and bail reform. Our user-pay justice system is folding in this crisis, and it’s time to make changes.

“It’ll never last.”

I have a vivid memory of a judge taking me aside after Katrina and telling me the reforms we’d made would never last. That judge is gone, now, and we’re still here, along with many of our reforms. The point is that the changes we are making to the justice system today have the potential to become permanent.

Before Katrina, for example, our office wasn’t even publicly funded. Meanwhile, we’ve learned how to tackle both the short-term emergencies while strategizing and working together to aim for the longer-term reforms we want to see.

It’s important to be clear about what we want to see happen, and also to be clear that there are some things, in an emergency, that we’ll tolerate. But we’re also being very clear that once we get past it, things need to change.

Drawing The Line

After Katrina, it was very important for the defense bar to draw a line and assert our independence. There was one example where a defense attorney upset a judge and was hauled out of a courtroom in handcuffs. It sparked controversy, but a line was drawn, and we’ve held that ground since then.

We hold on to these reforms by proving that the reforms work and create value for our community and system. It’s also important to engage with media and others to tell the story of success.

I also remind people that whatever the reform, the empire always strikes back. There’s this reflexive systemic desire to reclaim what is lost. We’ve got to remain vigilant and be ready to defend the positive changes we’re able to make as a result of addressing this crisis.

—Derwyn Bunton is the Chief District Defender for Orleans Parish, in New Orleans, where he leads the Orleans Public Defenders Office. You can watch Mr. Bunton’s appearance as part of an April 10 webinar hosted by the American Bar Association, about lessons learned from Hurricane Katrina, by clicking here.

The prolonged outbreak of COVID-19 has drawn attention to the importance of integrating a public health framework to criminal justice system responses. In recent weeks, the need for this approach has only become greater following increases in arrests, particularly of protesters, in jurisdictions aiming to reduce jail populations as a response to increased health risks from COVID-19.

As a strategic ally in the Safety and Justice Challenge, the Association of Prosecuting Attorneys has partnered with a wide array of criminal justice stakeholders, including the National Association of Criminal Defense Lawyers, the Center for HIV Law & Policy, and Community Oriented Correctional Health Services, to call for a public health-oriented approach to the COVID-19 crisis. You can read the principles here. Our key recommendations include releasing people who are incarcerated in compliance with clear public health recommendations and established public safety release criteria; limiting new admissions; addressing violations of COVID-19-related directives, such as the use of protective gear and social distancing, in a manner that is consistent with public health considerations rather than criminalization; drawing inspiration from existing innovations that promote the integration of public health priorities into the justice system; and making connections among public health organizations, researchers, and criminal justice stakeholders.

Two examples of SJC sites which have innovated to promote the integration of public health priorities into the justice system are Pennington County, South Dakota, and Deschutes County, Oregon:

• Pennington County’s “Care Campus” centralizes social services with a single point of entry in a co-located campus that streamlines everything, allowing individuals to immediately get the help they need. It houses a detox treatment, Safe Solutions program, Crisis Care Center, Quality of Life Unit, and Pennington County Health and Human Services, under one roof. The complex houses residential alcohol and drug treatment services, too. Individuals facing a crisis can walk in and do not need to wait for police to intervene. A recent study showed that 64 percent of admitted individuals were self-referred. This facility reduces the burden on the justice system and does not saddle people who need help with a criminal record.
• Deschutes County’s “Clean Slate Program” allows individuals the opportunity to remove arrest from their record and access a variety of services—including medical care and drug treatment—if they’re arrested or cited with possession of a controlled substance. Participants have the opportunity to meet with defense counsel privately to discuss their case and determine if they want to participate. The goal of this program is to identify the best intervention for each individual and shift the response strategy, providing a direct connection to health care and substance abuse treatment that could generate better sobriety and health outcomes.

Adopting a public health framework to inform public safety decisions is a critical intervention that has been successfully used by many public safety agencies in response to COVID-19, and should endure beyond this current crisis.

On behalf of our thoughtful and proactive prosecutors, we’re proud to partner with public health and safety stakeholders to develop key recommendations for a public health-oriented approach to the safety of incarcerated individuals, staff and our communities to keep all safe and healthy. The multi-disciplinary team of experts stand ready to provide resources and technical assistance to jurisdictions around the country who are creating actionable proposals to address these issues. These resources include, for example:

• Experts in development of successful public health/criminal justice interventions;
• Infectious disease experts and consultants within health departments across the country;
• Criminal law legislative and administrative law experts; and
• Experts in diversion programs and alternatives to incarceration.

We encourage jurisdictions looking to develop and implement actionable proposals for a public health framework for their criminal justice system response to pandemics such as COVID-19 to contact us for assistance and to be connected with our network of experts.

—Marlene Biener is Deputy General Counsel with the Association of Prosecuting Attorneys