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Excerpted From: Jay M. Zitter, COVID-19 Related Litigation: Effect of Pandemic on Release from State and Local Custody, 54 American Law Reports 7th Art. 3 (Originally published in 2020) ( Footnotes/References) (No Full Document Available Check Your Local Library)

NoPictureAvailable03While keeping prisoners in jail during the COVID-19 novel coronavirus pandemic might make it more likely that they will contract the infection due to the near-impossibility of keeping prisoners isolated and maintaining social distancing and hygiene, and although prisoners who are older or in poor health may be at serious risk of injury or death if they are infected, releasing violent criminals endangers society. Accordingly, this article collects and discusses the cases considering under what circumstances persons who are presently incarcerated should be released from state and local custody for reasons that include the effects of the COVID-19 pandemic.

It is quite likely that one of the worst places to be in the United States during the COVID-19 pandemic is in prison. This is because, almost by definition, there can be no social distancing in prison. Likewise, protective measures publicized by government leaders and the press, such as avoiding large groups, increased ventilation, heightened sanitation practices, and wearing protective gear, are difficult if not impossible goals for people locked in jails and prisons. Furthermore, as is well-known the United States incarcerates millions of people, a greater share of its population than any other nation in the world. Many of these prisoners suffer from chronic health conditions, and there are also more older people in prison than ever before. The elderly and those who suffer chronic medical conditions are at a much higher risk of severe illness and death from COVID-19. In the jail and prison environment, where COVID-19 can spread quickly, the elderly and infirm face a harrowing and dangerous reality. In addition, there is also a "jail churn" of admissions and releases from local jails, acting as a powerful transmission multiplier among the 7.3 million people who are incarcerated each year.

The easiest way to solve the problem of prisoners in jail during the pandemic is, of course, admitting fewer prisoners or releasing as many prisoners as possible, at least temporarily until a detainee stands trial or until the pandemic itself ends. Releasing the prisoners most at risk, aside from removing them from an assertedly dangerous environment, has the added benefit of freeing up jail space so that social distancing and enhanced hygiene is more likely to take place for the remaining prisoners. Likewise, many organizations have stressed that those held for minor or technical offenses, those held on low bail amounts, those whose sentences were almost completed, or detainees not yet charged, could also be released. Accordingly, many states have issued emergency COVID-19 pandemic executive rules which generally released many prisoners who fell within these categories. On the other hand, there is a logical reason why many prisoners should remain incarcerated, namely releasing violent criminals would likely pose serious risk of injury or death to their former victims, and would pose risks of new crimes perpetrated on society in general. Likewise, many of these prisoners have a long history of criminal activity, including bail jumping and evading justice, or have very little to lose by not surrendering themselves voluntarily when any temporary release ends, and thus they are serious if not certain flight risks if released. Accordingly, many courts have considered whether particular incarcerated persons should be released given the COVID-19 pandemic, with the courts often looking to differing considerations based on the particular type of incarceration involved. For example, while in a number of cases the courts have held that the requested release of a pretrial detainee due to the potential dangers to the individual of becoming infected with the COVID-19 coronavirus while detained was proper or would be ordered or considered, other courts have disagreed. These decisions often turned on whether the evidence showed that the prison authorities had taken significant steps to remedy the situation that made many jails particularly dangerous places for becoming infected the coronavirus, such as increasing social distancing by lowering the number of people eating or sleeping in close proximity, maintaining a much higher level of hygiene, increasing the use of masks, lessening or barring visitors and other outsiders, and the like. Moreover, these cases also considered whether in fact the particular detainees were medically vulnerable, whether the detainee was incarcerated on a violent or nonviolent charge, whether the detainee had a history of committing crimes and was likely to resume a life of crime if released, and whether the detainee was a flight risk. Likewise, and based largely on similar considerations, although in a number of cases the courts have ruled that where a detainee was in jail because of probation or parole violation, revocation, resentencing, or the like, the requested release of the detainee due to the potential dangers to the individual of becoming infected with the COVID-19 coronavirus while detained was proper or would be ordered or considered, other courts have reached the opposite conclusion. Still other caselaw has considered claims by incarcerated persons that they should be released due to the asserted potential dangers of becoming infected with the COVID-19 coronavirus while incarcerated, such as where the detainee was in community custody, was imprisoned for contempt of court, was convicted but not yet sentenced, or was incarcerated in a substance addiction program. Other courts have reached opposing conclusions as to whether release of an incarcerated individual was appropriate or inappropriate, such as where the defendant was incarcerated because they were financially unable to post bail, or were sentenced or serving a criminal sentence.

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A few courts have considered special general release mechanisms that were enacted due to the pandemic. For example, there is caselaw considering whether executive rules providing for release of certain prisoners due to the COVID-19 pandemic required due process protections in its application. In addition, there is caselaw involving the judicial establishment of rules that in order to immediately reduce the population of the state's jails, prisons, and houses of correction because the state was under a state of emergency due to the COVID-19 pandemic, any individual who was not being held without bail, not dangerous, not a flight risk, and who had not been charged with a violent or serious offense was entitled to a rebuttable presumption of release pending trial. Furthermore, there is caselaw considering whether mandamus would be ordered to immediately reduce the population of the state's jails, prisons, and houses of correction because the state was under a state of emergency due to the COVID-19 pandemic.

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