D.C.’s public defenders are trying to turn the tables on their courtroom counterparts. For the past several weeks, since the coronavirus began spreading in the D.C. area, defense attorneys have filed individual requests for judges to release their clients from the DC Jail, many of which focus on people detained and waiting for trial.
The U.S. Attorney’s Office then responds, typically arguing to keep people incarcerated, defense attorneys say anecdotally, and a judge makes a ruling.
But now, the D.C. Public Defender Service, in a novel motion, is asking to establish a presumption that all people serving misdemeanor sentences be released. If a judge agrees, the burden would then shift to prosecutors to argue why individual inmates should remain behind bars.
“Our motion is intended to perform a public service, and to do so speedily,” PDS lawyer Samia Fam says in an emailed statement. “We must reduce the jail population because jails are a petri dish for Covid-19. Prisoners are packed in, they cannot practice social distancing and neither can their guards or their attorneys who must visit them. These are disastrous conditions not just for the jail population but for the entire community.”
The inmates PDS’ motion targets are currently serving sentences and therefore currently might not have an attorney to file a motion on their behalf.
“They will rejoin the community in any event in short order,” the PDS argues in its motion. “Undoubtedly they would not have been sentenced to jail time in the first instance had they been sentenced now in the throes of the exponentially accelerating danger. The court should act now to reduce the jail population for the benefit of the entire community and to protect the health of these low risk inmates.”
There are currently 94 people serving misdemeanor sentences in the DC Jail’s two facilities, according to PDS’ motion. Generally, a misdemeanor conviction in D.C. comes with a maximum 180-day jail sentence, though some carry a sentence of up to a year.
The PDS motion draws from a sweeping order from the New Jersey Supreme Court that is expected to release 1,000 inmates from the state’s local jails. The order in New Jersey, which benefitted from agreement between prosecutors and defense attorneys, focused on inmates serving time for probation violations and low-level crimes. It is unclear whether the U.S. Attorney’s Office for the District of Columbia would agree to such broad action, and a spokesperson for the office did not immediately respond to City Paper’s request for comment.
This week, the D.C. Department of Corrections confirmed that a 20-year-old male inmate tested positive for COVID-19 and is isolated in the infirmary. DOC initially said that the man, who has not been publicly identified, was in a single-person cell five days before he tested positive.
But, the PDS motion says, the inmate was in a two-person cell six days before testing positive “and undoubtedly came into contact not only with his cellmate, but countless other residents and staff while highly contagious.”
Worse than that, the PDS motion says, DOC Director Quincy Booth said the inmate who tested positive had been incarcerated since July 2019.
“DOC has not determined how he was exposed to the virus, making it a virtual certainty that other infected individuals are currently residing in DOC facilities,” the PDS motion says.
A March 27 email from DOC general counsel Eric Glover to judges in D.C. says three more inmates were tested for COVID-19 yesterday, and DOC is awaiting the results. A total of 36 inmates were in quarantine as of March 26, according to District officials’ count.
In what could be reason for optimism for public defenders, D.C. Superior Court Chief Judge Robert Morin issued two new orders today regarding jail sentences. The first suspends all weekend jail terms until June 5. The second suspends all bench warrants for traffic and misdemeanor cases with the exception of domestic violence and sex offenses.
Other players in the criminal justice system have started taking action to release people in DOC’s custody.
Defense attorneys are asking judges to release inmates sitting in jail who are awaiting trials, and the D.C. Superior Court issued an order earlier this week outlining the criteria judges are likely to consider: The inmate’s age, health, and alleged crime are at the top of that list. Although D.C. police continue to arrest alleged criminals, they now have greater discretion to issue a citation rather than haul a person in to jail for certain minor offenses.
The U.S. Parole Commission bent to demands from lawyers and advocates and is considering releasing people detained on technical violations of their release, such as dirty drug tests or missing a check-in meeting, among other actions.
The U.S. Attorney’s Office has agreed to make charging decisions before arrestees enter DOC’s central cellblock, potentially limiting exposure of new people coming into the facility, according to Deputy Mayor for Public Safety and Justice Kevin Donahue.
The D.C. Council also expanded DOC’s authority to issue extra “good time” credits to inmates to facilitate their release. So far, 20 inmates have been released thanks to good time credits and 18 more are likely to get out, Ward 6 Councilmember Charles Allen confirms via text.
As of today, there are 1,638 people locked in D.C.’s DOC facilities, according to Glover’s email.
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