Philadelphia had not even 50 confirmed coronavirus cases last week when officials there began announcing changes to their justice system amid the pandemic.
Police Chief Danielle Outlaw told officers on March 17 to stop bringing people arrested for non-violent crimes like burglary and vandalism to police stations and jails. Instead, they would be issued arrest warrants to be served later “as conditions dictate.” District Attorney Larry Krasner changed his office’s bail policy a couple days later, aiming to reduce how many people were jailed. “Jails and prisons are already dirty, crowded places,” he explained.
Meanwhile in New Orleans, where cases had already reached nine times the per capita rate of Philadelphia, officials showed much less urgency. As recently as March 18, District Attorney Leon Cannizzaro’s office was opposing motions to release jailed people, arguing they might “pose a threat to the general public by potentially spreading the virus”—even though no defendant in jail had tested positive. The police department said it would take “more incident reports by phone when appropriate,” but otherwise made no public change to its arrest policies.
The different approaches highlight the vast range of responses to the pandemic within the criminal justice machinery—just as cities and states have implemented social distancing with different speeds and degrees of intensity. In some cities, officials and the courts have worked together to release people from jail, stop bringing new people in and generally lower the risk of outbreaks in jails and prisons. In other locations, hardly anything has changed. As those differences play out in real time, public defenders and activists worry they are working against the clock as the danger of a jailhouse epidemic looms.
Perhaps nowhere is the situation more urgent than in New Orleans, which researchers say now faces the most rapid growth rate of coronavirus cases in the world. On Friday the city had reached 1,170 cases of COVID-19 and 57 deaths. City hospitals are projected to breach capacity by early April.
Eight employees and one contractor at the Orleans Justice Center, the city jail, have tested positive for the virus, and seven defendants were quarantined inside with symptoms and awaiting test results.
The situation at the jail so alarmed the public defender office, it took the extraordinary step Wednesday of asking all the city’s criminal district courts to release vulnerable and low-risk inmates en masse, rather than petitioning release for each individual as it had been doing in the past several days. The judges responded Thursday, ordering the jail to “immediately release” people detained for one of four minor offenses. The public defender’s office essentially called it too little, too late, saying over 200 individuals among the 900 still in jail were being held on non-violent felonies and urging their release.
“We’ve seen throughout the country the harms that come from not acting soon enough to deal with this virus. You can’t wait for it to spread to start taking actions to contain it,” said Colin Reingold, senior counsel for the defenders’ office. “With a jail, those risks are even greater because of the close quarters and difficulty distancing. If we don’t act quickly and decisively we’re going to have a public health disaster.”
Cannizzaro has been resistant. Although his office has stopped arguing that released defendants pose a health risk, this week it opposed the defenders’ request for a mass release, arguing essentially that the city jail was no more or less safe than being in the general public.
“Given the rate of infectious COVID-19 spread in our city, all New Orleans citizens are vulnerable, not just the jail deputies and inmates cited in these motions,” Cannizzaro said in his response to the police department’s filing. He also said releasing “demonstrably violent criminals” would put public safety at risk.
To be sure, New Orleans’ jail has released 144 people in the last two weeks, a 14 percent drop that still left 901 people detained as of Friday. Cannizzaro’s office has highlighted that the number of people jailed is a historic low. He’s argued that “only a tiny fraction” remain held for non-violent offenses. But the city jail dashboard showed at least 166 people (or 18 percent) remained jailed on non-violent charges related to drugs, burglary or possession of stolen items.
Orleans Parish Sheriff Marlin Gusman, whose agency operates the jail, joined the choir in favor of cutting the jail’s population late Thursday, asking the courts to release “non-violent offenders who have no prior record.” He argued these are “unprecedented times.”
But deciding who to release based only on whether they face violent or non-violent charges ignores that this doesn’t necessarily map onto who is at risk of dying from coronavirus. Other cities have been considering that health risk. In Houston, Sheriff Ed Gonzalez told The Marshall Project that at the onset of the crisis he asked for a list of people in his jail who are over 60 or have underlying health conditions that increase their risk, and then he began advocating for their release.
“With an outbreak spreading like wildfire inside any jail system because of tight quarters, that could likely be a death sentence for those individuals because of their vulnerability,” Gonzalez said. “At least they'd have a fighting chance if they were at home or in the care of somebody else.”
Gonzalez and others moving to reduce who is caught in the criminal justice system now are working along two lines. One is individual concern for vulnerable people in custody. The second is public health in the general sense, since some research suggests that even if coronavirus is contained among the general public, prisons and jails could act as quietly simmering reservoirs of infection, seeding outbreaks well into the future.
Krasner, a former public defender elected on a progressive reform platform, said he thinks “of all these things in terms of the entire population of Philadelphia, not just the individuals who are most directly affected.” He declined to put a “magic number” on how many people should be released. But with a jail population in the mid 4,000s and roughly 2,500 cells available, he wants to prevent people from being housed in the same cells if it can be done without releasing a person who presents a legitimate public safety risk. That would also help reduce how many people each guard must supervise, giving everyone inside a better chance to reduce infection rates by keeping social distance, he said.
But he added: "If what we have—which we do not—but if what we have is 3,500 vicious people, then I think there's a damn good argument that you shouldn't have less than 3,500 people in that jail.”
Back in New Orleans, where residents are under a “shelter at home” directive, arrests are down, according to an analysis by local non-profit newsroom The Lens. But police are still arresting people for minor crimes, including marijuana possession, trespassing and possession of stolen goods, according to documents obtained by the watchdog group Court Watch Nola and reviewed by The Marshall Project. Simone Levine, the group’s executive director, said their court watchers were still seeing people arrested for failure to appear in municipal court and non-DWI traffic offenses.
“We have sounded the alarm with New Orleans’ police chief and will continue to do so,” she said.
Most of those individuals were released after arrest and first court appearance, but still were put inside the jail while waiting to appear in court—increasing the chance they’d bring the virus inside or possibly be exposed to it while in jail.
Besides noting that it’s taking more crime reports by phone, the police department said it was seeking to “improve social distancing between officers and citizens.”
New Orleans is not alone in its police making arrests other jurisdictions are now avoiding. In Jackson, Mississippi, police spokesman Sam Brown said last week: “Crime continues to go, and we still have to police it the way that we normally do.”
The business-as-usual attitude in places like New Orleans worries advocates like Robert Jones, who works as a client advocate and lead organizer for the public defender’s office. He said inmates in the jail and their families have been calling him, aware of jail-clearing efforts in other cities, asking what New Orleans is going to do.
Jones was wrongfully convicted in 1994 and served 23 years in Louisiana’s notorious state prison at Angola. He worries that in a state and city where medical supplies and care capacity are rapidly dwindling, an outbreak at the jail will be left behind in the mess.
“Even if they had treatments, they consider us as fourth-class citizens. They’re not going to give them the proper treatment, and they're gonna die inside the prison,” Jones said of a possible outbreak inside. “I wish we’d take preventive measures like what they’re doing in Philly.”
There’s a historical resonance in both cities on how they respond—or don’t—to crisis. During the “Spanish Flu” pandemic in 1918, Philadelphia became a portrait of public health disaster when city leaders decided to go forward with a parade amid the outbreak, while other U.S. cities, like St. Louis, enforced social distancing. The result in Philadelphia was catastrophic. Within three days every hospital bed in the city was full, and by the six-month mark there were more than half a million cases and about 16,000 dead.
Meanwhile in New Orleans in 2005, in advance of Hurricane Katrina, Gusman resisted calls to evacuate the city jail, which then held seven times as many people as it does today. The storm and the federal levee failures caused catastrophic flooding throughout the city, and according to an ACLU report left thousands of inmates stranded behind bars in a toxic bath of chest-high stormwaters for days.
Jones is concerned that the lessons from Katrina have not seeped in.
“They were forewarned that it was a dangerous storm, and they decided just to ride it out,” he said. “Look what happened as a result of that.”
Correction: An earlier version of this story incorrectly identified Sam Brown’s title. He is the spokesman for the police department in Jackson, Mississippi.