Across the country, law enforcement agencies are reducing their jail populations to prepare for the coronavirus, striving to reduce infections among incarcerated people and make space for quarantined inmates. New Orleans prosecutors are taking a different approach. In case after case, prosecutors are opposing motions to reduce defendants’ bond, forcing them to remain behind bars—even when they are charged with minor crimes. These prosecutors are not ignoring the coronavirus. Rather, they’re arguing that the pandemic provides another reason why defendants should not be freed.
Public health experts have warned that jails will soon become an epicenter of the coronavirus pandemic in the United States. It’s easy to see why: Jails cycle a large number of people in and out of crowded spaces with unsanitary conditions and often subpar medical services. Most jurisdictions are totally unprepared for mass infections behind bars; they lack COVID-19 tests, resources for treatment, and space for quarantines. Defense attorneys have responded, with mixed success, by asking judges to release individuals accused of minor and non-violent crimes.
As of Monday, New Orleans had the second-highest number of COVID-19 cases per capita in any American city. Public defenders have filed motions requesting lower bonds for people who may be especially vulnerable to the virus. Yet prosecutors are vigorously opposing these motions. They have, in fact, drafted boilerplate language to argue that people must stay locked up in jail to protect public health. Here is the passage that appears in all seven motions reviewed by Slate:
Pursuant to [state law], the trial court may consider “the nature and seriousness of the danger to any other person or to the community that would be posed by the defendant’s release” when setting a defendant’s bond. The defendant has failed to show that, if released on bond, he will have a residence to stay in while the city battles the Coronavirus outbreak. Nor has he demonstrated that he will adhere to any curfews and other safety measures set in place by city officials. If the defendant is released on bond during the Coronavirus outbreak and goes into public places, it will pose a threat to the general public by potentially spreading the virus to others and increasing the rate at which others are exposed to the virus.
Prosecutors sometimes add specific concerns to this language. For instance, in one motion, prosecutors asserted that “the defense contend that the defendant is ‘unable to perform basic tasks for himself’ such as washing his hands. If released, the defendant will pose a health risk to the great community during this emergency.” In each motion, prosecutors also allege that the defendant “failed to provide any medical documentation in support of his argument that he will be at risk of contracting Coronavirus in the Orleans Justice Center,” the local jail. Put differently, the burden falls on defendants to prove that incarcerated people are at heightened risk of infection—even as Louisiana Gov. John Bel Edwards halted large gatherings to avoid large crowds in small spaces.
Ken Daley, a spokesman for the Orleans Parish District Attorney’s Office, told Slate that it had no policy of opposing bond reductions on the basis of COVID-19. He said the office was responding “to a slew of new boilerplate public defenders arguments citing coronavirus” that are “based on conjecture and supposition, rather than evidence and law.” Daley added he was “unaware” of “any confirmed cases of the virus inside the Orleans Justice Center.” (It is unclear if anyone in the jail has been tested.) Daley also said that the office has “assented to a reduction of the Orleans Parish jail population over the past week, by choosing thus far not to contest any judge’s bond or release-on-recognizance decision through appellate court review.”
These prosecutors’ approach is quite different from the one adopted by their colleagues in many other states. Fair and Justice Prosecution, an organization that supports criminal justice reform, published a letter on Monday signed by 31 prosecutors urging the release of as many people as possible to stem the spread of COVID-19. These prosecutors called on local officials to “take steps to dramatically reduce detention and the incarcerated population” by releasing people who are elderly, especially vulnerable due to health conditions, or incarcerated “due to technical violations of probation and parole.” They also recommended the release of people within six months of completing their sentence, as well as those detained “because they can’t afford cash bail, unless they pose a serious risk to public safety.”
New Orleans prosecutors appear to be rejecting this advice. Slate obtained motions opposing bond reduction for individuals who are elderly, accused of minor crimes, and detained solely because they cannot afford to pay. In all of these cases, prosecutors argued that “they pose a threat to the general public” because they may infect others. But keeping them incarcerated will surely exacerbate the spread.Health care in jails is abysmal, and a substantial proportion of inmates have complicated medical needs and chronic illnesses. As the Fair and Justice Prosecution letter warned, jails will become “breeding grounds for the coronavirus” if they are not emptied out. And the virus will not remain behind bars: If district attorneys drag their feet, more and more inmates will acquire it, and potentially pass it on when they are finally released. Corrections officers, too, will be exposed to the virus and carry it back to their homes (prison staffers elsewhere in the country are already testing positive). New Orleans’ prosecutors may claim to be protecting the public. In reality, they are putting their own communities at greater risk.