Santa Clara County, California, the wealthy county encompassing Silicon Valley and San Jose, was among the first places to report cases of the coronavirus, and one of the first to take drastic steps to stem the pace of infection. Now it’s taking another: The Santa Clara County sheriff has said they need to immediately reduce the jail population in order to effectively quarantine people.
Time is already running short. The Santa Clara County Jail, like every jail in the country, is expected to become an epicenter of the outbreak. Jails tend to be hotbeds for illness because they pack people into crowded, dirty spaces with scarce medical supplies and services. It’s also not possible to fully seal facilities off from the rest of the world; they cannot function without guards and other staffers coming in and out every day. But COVID-19 poses a larger threat than the typical flu, and there’s a growing consensus that the only way to stave off a public health disaster is to release people. Even as public officials in various places have started to realize this, the process has been slow going; it’s no easy task to reverse-engineer a system that’s accustomed to processing thousands every day into incarceration into one that can let them out.
In Santa Clara, the threat of outbreak is forcing a rethinking of the typical calculus that decides who belongs in jail. Eighty percent of people currently incarcerated in the county jail have not been sentenced and are awaiting trial. Together, the offices of the public defender, the district attorney, the sheriff, and pretrial services are aiming to release at least 600 people—20 percent of the jail’s current population—as soon as possible.
Judges will ultimately make the call to release people, but the prosecutor’s stance is one of the biggest influences on decisions from the bench. In the face of the virus, that stance has undergone a radical change. Max Zarzana, a Santa Clara County prosecutor who is coordinating releases with the public defender’s office and pretrial services, told Slate that while prosecutors will continue to oppose releasing people accused of the most serious crimes—like murder, rape, and arson—they will no longer prioritize “the safety of property” over people’s freedom.
“Before, I might make a straight-faced and heartfelt argument to a judge that goes, ‘You can’t let this person out because as soon as he gets out, he’s going to steal somebody else’s car,’ ” said Zarzana. “I’m not making those arguments right now. I’m making the opposite argument: ‘Judge, look, I know that if you let this person out, he really might steal somebody else’s car, but stealing a car is not worth a death sentence from dying in prison due to COVID or increasing the risk of exposure to other people.’ ”
Zarzana and Santa Clara County public defender Carson White negotiated a list of around 150 people who could be immediately released in a first batch, and a judge started signing release orders for this group on Thursday. Many are people the jail has identified as “medically fragile.” The rest came from a list of people whom pretrial services had originally recommended for release before the virus hit, but the DA had opposed. In many of these cases, Zarzana took a second look at the facts underlying certain crimes typically classified as “violent.” Robbery, for example, is defined as taking property by use of force, a broad definition that allows prosecutors to level a serious violent felony charge at a person who may have simply shoved someone and grabbed their backpack.
“Stealing property, stealing a car, even breaking into somebody’s house when it’s not occupied, using drugs, selling drugs—there’s a whole lot of crimes for which people are incarcerated that don’t necessarily have anything to do with harming another individual,” he said.
There’s also the question of what to do with people who are serving their sentences in the county jail. The DA’s office has agreed that people with less than 90 days left on their sentence should be released immediately, and in four months they can turn themselves back in to serve the rest of their sentence—or, if they do well over those four months, the rest of their sentence would be waived. People who are scheduled to start their sentence in the next few weeks would have their start dates pushed back six months.
As the coronavirus spreads, other DAs and judges will face the same choices. A letter signed by 31 prosecutors earlier this week urged mass releases, an end to cash bail, and a slowdown in new cases. Most of these decarceral steps are relatively modest and focus on people facing charges for low-level, nonviolent crimes. After coronavirus cases were confirmed in the Rikers Island jail complex, New York Mayor Bill de Blasio said Thursday he had identified just 40 people he felt could be released out of the roughly 5,000 incarcerated in New York jails. The Los Angeles County Jail, similarly, has reduced its jail population by 5 percent. Experts say much more drastic action will be needed to head off disaster.
Zarzana said that while prosecutors should ensure the people they release are not going to harm, rape, murder, or kill, the bar for incarceration should be high. “Everyone should keep in mind that there is no property crime for which we have the death penalty,” he said. “So if keeping someone in jail for a property crime or a drug crime might result in their death or the death of other inmates from COVID, I don’t think that’s a good prioritization.”
White hopes that once the threat of the virus is contained, this mass release changes minds about who really needs to be in jail in the first place. “My position is that incarceration is always a question of life and death,” she said.
The jail’s track record backs her up. Even after multiple federal consent decrees concerning treatment of mentally ill detainees, solitary confinement, and inhumane conditions, people have continued to die in the Santa Clara County jail system. Two years ago, three jail guards were convicted of murder for beating a mentally ill prisoner to death. Separately, the county recently paid out a settlement to the family of Walter Roches, who died after deputies shot him with a riot gun through the food tray slot in his cell door.
“The reality is there is always risk involved,” White said. “It may not be the coronavirus, but unemployment, housing, destabilization for the most vulnerable members of our communities, those struggling with mental health or substance abuse disorders—those things are always life-threatening.”
Zarzana said recent bail reforms in California had already started to change prosecutors’ mindset on pretrial incarceration, but that the virus has “greatly accelerated” the process.
Even while mass release is the most humane option, it’s not without its own secondary problems. Many people who will be released are homeless or have lost their homes while in jail, White said, and homeless shelters are facing their own overcrowding problems. Local organizers are working to find stable shelter for people being released. One such group, Silicon Valley De-Bug, has secured money for hotel vouchers and cellphones for everyone coming out of jail. They’ve also put together care packages with toiletries and soap. The public defender’s office will give all the released clients a letter explaining why they’re being released and offering contact information for De-Bug organizers, social workers, and county hotlines for substance abuse and mental health, as well as information about picking up medicine they were taking in custody.
“When you incarcerate someone, when you tear them out of their lives, there’s damage done,” White said. “So these people aren’t just safe now because we released them from custody. Many of them are still in dangerous situations and without whatever limited social safety net that there would normally be.”
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