Washington Supreme Court Orders Judges to Keep People Out of Jail

A prosecutor who worked on the far-reaching order explains why the courts must act now.

Nurses process a sample for COVID-19 after a patient was screened at an appointment-only, drive-up clinic in Seattle, Washington, an epicenter of the outbreak.
Nurses process a sample for COVID-19 after a patient was screened at an appointment-only, drive-up clinic in Seattle, an epicenter of the outbreak. Karen Ducey/Getty Images

Since COVID-19 arrived in the United States, the judiciary has struggled to respond to a growing crisis that threatens every aspect of the justice system. Most state courts failed to respond promptly to the pandemic, likely exacerbating the spread of the virus by packing courtrooms and holding business as usual. Over the past two weeks, however, almost every state Supreme Court has issued an order dramatically scaling back judicial operations as much of the nation shuts down.

Yet most of these courts have not taken a crucial step in combating the outbreak: freeing as many people as possible from jail. Public health experts agree that it’s necessary to reduce incarcerated populations to prevent detention centers from becoming an epicenter of the outbreak. In almost every state, a majority of people in jail have not been convicted. These pretrial detainees are legally innocent, and many are accused of misdemeanors or minor felonies. But only a handful of state Supreme Courts—including those in Massachusetts, Michigan, New Jersey, Ohio, Oregon, and Washington—have ordered judges to release people in order to curb the spread of the virus. It’s vital for these courts to step up and impose uniform rules across the entire state, and to do so now. Otherwise, individual judges will slowly develop their own rules, creating a patchwork of policies that may be insufficient to stop the spread, and too tardy to prevent an outbreak behind bars.

The Washington Supreme Court, which oversees the first state to experience a COVID-19 outbreak, has gone the farthest in mandating a statewide reduction in jail populations. On Wednesday, the court issued an order expediting motions for pretrial release and allowing detainees to cite the coronavirus when requesting a reduction or elimination of bail. Trial judges must consider the pandemic when defendants—especially those most vulnerable to the virus—request a bail reduction. And judges must “expeditiously” sign release agreements between prosecutors and defendants. The high court also directed judges to prioritize pretrial release and bail modification motions, as well as “plea hearings and sentencing hearings” that will result in a defendant’s release within 30 days.

Remarkably, the Washington Supreme Court’s sweeping order was largely the result of an agreement between Adam Cornell, the Snohomish County prosecuting attorney, and Amy Muth, chair of the defense bar’s COVID-19 task force. Cornell developed these policies for his own county early on after coronavirus cases skyrocketed in Washington. He then worked with Muth to propose statewide rules to the high court, which promptly adopted their recommendations. While prosecutors in other states fight efforts to shrink jail populations, Cornell has helped reduce the Snohomish County jail population by 35 percent. I spoke with him on Friday about his work preparing the justice system for a pandemic. Our conversation has been edited and condensed for clarity.

Mark Joseph Stern: When did you first realize that the coronavirus would have a dramatic effect on the criminal justice system?

Adam Cornell: Toward the end of February, it became abundantly clear that this was a threat that was not going to go away. The first thing that came to mind was: The world of criminal justice is about to change dramatically. The second thought that came to my mind was: I can’t address this alone. It’s critically important that we address this in a collaborative way, with everyone in the criminal justice system: corrections officers, public defenders, the clerks, the presiding judge—all those players are essential to assessing the threat.

Prosecutors have an awful lot of power in their community in their ability to exercise their discretion. But in a crisis like this, that discretion and power only go so far. There was a lot I did, policy-wise, that’s within the ambit of my discretion. But a lot of the larger stuff is really a product of bringing people to the table. I have a couple friends who are public defenders in King County and it sounds like it’s been kind of a complete disaster there. It may be because people are just not sitting around a table. I think in a time of crisis it’s important to bring everyone to the table and to set our adversarial roles aside.

What policies did you prioritize?

One of the first things we did was implement a “waiver of presence” policy, a collaborative effort between my office, the presiding judge, and the public defender. That was the first policy that I implemented in my office. It was meant to do a very simple thing—keep people apart. Under the policy, during certain hearings in our court, like status hearings, a defendant’s presence can be waived and they can simply sign documents in the presence of their lawyer and avoid having to come to court at all. Those status hearings are sometimes the most populated hearings that we have and they oftentimes are hearings where there isn’t anything particularly substantive that’s happening. And I thought that was the perfect place to begin social distancing in our courts.

Do you have a target number of people you hope to release?

There’s not a target number. There are going to be individuals for whom we will not agree to release—folks who have been alleged to have committed violent crimes and sexual assault crimes. There is a limit to this. But I’m balancing public safety with a need to protect everyone in the community.

Some commentators, like those on Fox News, have asserted that reducing jail populations will lead to a spike in crime, making communities less safe. What’s your response to that claim?

I can tell you the thing that I am most focused on the safety of everyone in our community. I guess the Fox News folks will say this is a soft-on-crime kind of thing. This isn’t about being soft on crime. This is about being mindful of the impact of this disease. And frankly, these policies protect my deputy prosecutors. They protect corrections staff and court staff. And we’re not talking about opening the jail to every person who is charged or convicted of a crime. This policy addresses low-level felony offenders and misdemeanants. We’re not dismissing their cases. We’re just agreeing to remove them from custody because that is the safest thing to do.

Other prosecutors, including those in New Orleans, have argued that releasing low-level offenders from jail would actually endanger the community by contributing to the virus’ spread. I take it you disagree?

Let’s talk about the alternative: We’re going to fill our jails to the gills, invariably somebody is going to contract this virus, and it’s going to infect defendants, corrections officers, public defenders, deputy prosecuting attorneys, judges, everyone else—and we’re only going to increase the spread. That’s the alternative. The other thing is, these defendants who are serving sentences in jail, they’re going to get out! These people are not serving life sentences. The misdemeanants are not going to be serving more than a month. These people are going to finish serving the 10-day sentences they got for some stupid criminal trespass case, then they’re going to go back out into the community, and they’re going to be infected because they were in jail in the first place.

Another thing to consider, particularly for misdemeanants and low-level felony defendants, is that these people also have loved ones in the community who may need their care. This monolithic belief that “criminals are bad” misses the nuances of human frailty and human strength. So I think that’s another important thing to consider.

One thing that guides much of my work is the fact that I grew up in our state’s foster care system. As a kid in foster care, you learn to identify threats. You learn how to overcome those threats. So I think that has been in some way what has guided my response to the crisis. It guides my approach to the criminal justice system. My parents struggled with alcohol and drug addiction and all the attendant challenges that lead to a kid being brought into foster care. That doesn’t mean I’m a softie on things, but I think I understand nuance a little bit better. It has provided me a perspective on the world that guides my work.

It seems you believe, and reasonably so, that you can release low-level felony defendants and misdemeanants from jail without endangering the community. The logical next question is, if you can do that during the coronavirus pandemic, why can’t you do that all the time?

There will be a time to consider what we do when the crisis has abated. We will have statistics that will show whether crime actually spiked in the two or three or five months of this crisis. We have to look at what the numbers tell us. I know reforms in some other jurisdictions, like Chicago, have actually led to a reduction of crime. I am really going to be interested in what the statistics tell us about crime during this time of crisis. I’ll look at that and consider that as well as other stuff I can’t even conceive right now because I’m squarely focused on trying to get us through this crisis.