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Prosecutors Disappoint During Pandemic — 2nd Edition

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The second post in our series analyzing the response from prosecutors to decarcerate and save lives during the COVID-19 pandemic. This blog looks at Philadelphia, San Antonio, San Diego, Dallas, and San Jose.
Back of lawyer talking to judges in a courtroom.
Nicole Zayas Fortier,
Policy Counsel,
ACLU Campaign for Smart Justice
Weronika Bzura,
Legal Intern,
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July 30, 2020

As the COVID-19 pandemic threatens to become a death sentence for people trapped in prisons and jails across the U.S., the actions — or inaction — of prosecutors to decarcerate have had a tangible life or death impact. We examined the responses from prosecutors in the 15 biggest cities in this country. This is the second post in the series. You can also catch up on the first, or jump ahead to the third.

6. Philadelphia, Pennsylvania 

Philadelphia’s Larry Krasner’s response during this pandemic has been both frustratingly slow and limited. After COVID-19 had already reached the city, his office was still considering ways to alleviate the local jail population. In March, Krasner signed onto a national joint statement urging local officials across the country to stop admitting people to jail, when they pose no serious risk to the physical safety of the community. Then, when turning to action in his own office, he ultimately instructed his office to limit bail requests to serious cases, asked his prosecutors to consider the virus in making charging decisions, and agreed to work with public defenders to identify who could be released from jail

But results came slowly. By April 3, only about 7 percent of the city’s approximately 5,000-person jail population had been released — a smaller percentage than virtually every other major city in America. Krasner has pointed to judicial inaction as a barrier to success, but judges point back to his office, citing that he took several weeks to approve lists of incarcerated people for release. Moreover, Krasner ran for office campaigning for and has already implemented bail reform policies requiring recommendations of the minimal necessary terms of release for people awaiting trial, but court watchers found in 2019 that Philadelphia prosecutors consistently recommend more than what the court deems necessary. Even through the coronavirus peak, where each bail set could be a death sentence, court watchers have found that the rate of cash bail stayed consistently between 40 to 50 percent of all cases. 

7. San Antonio, Texas 

Early on, San Antonio’s Joe Gonzales embraced the need for decarceration in response to the coronavirus. In March, Gonzales signed onto a national joint statement urging local officials across the country to stop admitting people to jail, where there’s no serious risk to the physical safety of the community. He also challenged Governor Abbott’s jail order, which limited the release of individuals who are incarcerated to those who can pay bail, as a threat that would overcrowd local jails at a dangerous time. Moreover, he asked his office’s prosecutors to lower bail requests for people accused of nonviolent offenses. 

But Gonzales could have done more. As a prosecutor, he could have focused less on getting through as many cases as possible, and more on lowering the amount of cases there are to begin with. Unfortunately, Gonzales continued to insist that grand juries should meet to allow charges to proceed rather than dismiss them. A more decarceration-oriented approach would have been for Gonzales to dismiss a larger swath of cases, especially where individuals are at high risk of contracting the virus, or don’t pose a safety risk to the general public. 

8. San Diego, California 

As the coronavirus spread through the country, San Diego’s Summer Stephan announced in late March that her office was working closely with the local sheriff’s department to identify people in jail to approve for release. Stephan said the offices would focus particularly on those who are medically fragile and vulnerable, whether pretrial or already serving their sentence. 

However, public defenders believe Stephan’s office is not doing enough. For example, in April, California’s Judicial Council set bail at zero statewide for most misdemeanor and lower-level felonies in an attempt to limit the further spread of the virus. Despite these efforts aiming to reduce the number of people who enter jails, Stephan tried to circumvent this rule, arguing in a letter to the Chief Justice that the rule needed a carveout that would allow for prosecutors to argue that a person’s criminal history should prevent release more often, and add conditions for those who are able to avoid jail during the pandemic.

9. Dallas, Texas 

Dallas District Attorney John Creuzot swiftly decided that decarceration was the best route to slow the coronavirus in jails. In March, he signed onto a national joint statement, urging local officials across the country to stop admitting people to jail so long as public safety is unlikely to be harmed. The following month, he joined three other Texas prosecutors in challenging Gov. Abbott’s jail order, which limits the release of people to those who can pay bail. Creuzot, for his part, announced that his office has worked with defense attorneys to identify who could be released pretrial and criticized police officers for continuing to arrest people for minor charges such as drug possession.

Unfortunately, releases from the county jail have been slow, to Creuzot’s frustration. In fact, in March, the jail held almost 1,000 people over its usual average — at the height of the pandemic. Unfortunately, by April 26, the jail’s population had only dropped by 500, from 5,879 to 5,309, and had one of the highest numbers of incarcerated people in the state who tested positive for the virus. 

Despite his expressed frustrations and advocates demanding reform to help people trapped in jail, Creuzot did not publish changes to his office’s COVID-19 decarceration policies that would leverage his authority to support declining charges, releasing people pretrial or post-conviction, or recommending non-incarceration sentences. 

10. San Jose, California

Santa Clara County, which encompasses San Jose, was among the first places to report cases of the coronavirus. San Jose’s Jeff Rosen quickly met with other county leaders to learn how to safely reduce the jail population, and set a benchmark: Together, they would aim to lower the number of people in jail by 650 as soon as possible. For his part, Rosen embraced internal office policies to help meet the goal. Steps taken included: directing prosecutors to release people held pretrial solely for “future risk” of property crimes; re-reviewing cases of people the office had previously deemed would await trial behind bars; reviewing cases for early release for those who were set for release within 70 days; delaying dates for self-surrender for admission; and setting up a protocol for public defenders to flag individual cases for the office to consider. His and other county officials’ efforts paid off: By April, they met and far surpassed their population reduction goal — lowering the population by 1,000 and continuing to sustain it at this historic low-point. 

However, Rosen’s policies should have gone further. For example, people with sentences slightly longer than 70 days — similarly on the brink of release while trapped behind bars during a health crisis — should have been considered for early release. No one should have been excluded from consideration for early release, as the office should have accepted responsibility for reviewing every case for individual circumstances. Moreover, recently, Santa Clara prosecutors opposed a motion from a public defender for a client’s pretrial release who had already contracted the virus, arguing that he would receive a higher level of medical care in jail than at home. This baseless argument ignores unsanitary conditions in jails and further endangers those in jail who still have not contacted the virus. Rosen should course correct from this incident, ensure decarceration policies do not further exacerbate already existing racial disparities, and broaden release efforts to help as many people as possible. 

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