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During the public health emergency caused by the COVID-19 pandemic, police are expected to give more citations for misdemeanors and some non-violent felonies during arrests, according to a Metropolitan Police Department executive order provided to City Paper. If someone is on parole, probation, or a pretrial release and arrested for a misdemeanor, they should be cited and not booked. The law isn’t changing for those who are arrested for serious felony offenses that are violent, involve a firearm, or related to drug distribution.   

The idea is to reduce the number of people booked into jail during this global public health crisis. According to the order, “a high number of custodial arrests” would “significantly impair the functioning of [D.C.] Superior Court.” Between arrestees and staff, the high turnover at DC Jail also means it can be a hotbed for an outbreak. Approximately 10,000 individuals are booked into D.C.’s jail annually and more than 20 percent of those individuals stay for seven days or less. 

On Wednesday, Deputy Chief U.S. Marshal Robert Brandt confirmed that a deputy U.S. marshal who worked in D.C. Superior Court tested positive for COVID-19. Given that they worked in the cell block and on adult and juvenile arraignments, defense lawyer James Zeigler tweeted that it’s likely there are active cases in DC Jail.

On Monday, D.C. Superior Court Chief Judge Robert Morin issued an emergency order that gave police and prosecutors the ability to issue a citation when someone is accused of a minor crime instead of having that individual detained until their first court appearance. And on Tuesday, MPD released the criteria it would follow during an arrest to meet Morin’s order during the public health emergency.  

Typically, someone is not eligible for a citation release if they inaccurately report information about their name. Individuals can be detained prior to trial if they are currently on probation or parole for a misdemeanor offense; on release for a simple assault or misdemeanor weapons offense; or arrested for a traffic offense and have a pending DUI, even if no one got seriously hurt. But that all changes under the new directive. Those who’ve failed to appear before court on a previous citation are also eligible for release.  

The executive order also says “members shall not charge arrestees bond or collateral in any amount in order to ensure their appearance in court. Bonds may only be issued by a judge as part of a warrant or court order.” 

The Office of the Attorney General, along with the United States Attorney’s Office for the District of Columbia, worked with MPD on the executive order with the intention of balancing the safety of everyone in the community. The OAG says Police Chief Peter Newsham rolled the directive out Tuesday night and expects officers were informed of it Wednesday. 

“I’m expecting to see and we have already seen some significant changes in just the number of people that are being processed,” says Elizabeth Wieser, the Deputy Attorney General for the Public Safety Division at OAG. “I do think it’s going to help and I think that we are going to see that fewer people are going to be processed now and so hopefully that will make a difference.” 

The Washington Lawyers’ Committee for Civil Rights and Urban Affairs wrote Newsham over the weekend asking that his department reduce the number of custodial arrests during this public health emergency. The lead author of that letter is pleased that MPD issued an executive order and says lawyers with the civil rights group will be monitoring to make sure it is implemented.  

“Having people in custody at this time is a public health danger to them and the community more widely,” says Emily Gunston, the deputy legal director of Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “This is always true, but especially now: Officers need to make sure they are approaching situations with an eye towards resolving them so they will not have to take the person into custody,” she says. This is critical for officers to keep in mind when speaking with young people, in particular, who are no longer going to class because schools are temporarily closed, she adds. 

Gunston and her team were still hearing from lawyers who are in D.C. Superior Court and in DC Jail a day or two ago that people were still being arrested and taken into custody even though they shouldn’t be. The Appeal reported that at least 170 people were arrested and booked over the weekend, many for low-level offenses like marijuana distribution, failing to appear in court, and driving without a license. The OAG expects this to change under the MPD executive order. 

This post has been updated to correct the name of the U.S. Marshal who confirmed a positive COVID-19 test.

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