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As the coronavirus spreads, some in criminal justice system resist call to keep people out of jail

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Prosecutors in Charles County, Md., have been so busy filing motions arguing that inmates at the local jail should not be released out of concern over the novel coronavirus outbreak that in at least one, they forgot to use the defendant's real name.

Instead, they called him “Billy W. Badguy Jr.”

County Public Defender Michael Beach said the document shows a dismissive attitude that “is just extremely troubling at a time like this.”

Even as officials across the country have looked for ways to get and keep people out of jail for fear of spreading the novel coronavirus behind bars, others have resisted changing public safety policy based on public health concerns. Some argue defendants are safer when detained.

Beach said all but a few of the 42 defendants his office was trying to have released were being held on nonviolent ­offenses, including petty larceny, trespassing and driving on a suspended license.

“Waiting until there’s a confirmed case of covid-19 inside the jail is too late,” he argued. “That’s the same non-preventative thinking that got us into the mess that we’re in now.”

Charles County State’s Attorney Anthony Covington called the “Badguy” name “a huge clerical error” but argued that some defendants were “trying to take advantage of this health crisis” by agitating for release.

“I know that can change at any moment, but there doesn’t seem to be any indication the virus is at the jail,” he said. “The jail believes a lot of people are better off there.”

Other officials, including Maryland Gov. Larry Hogan (R), have made similar arguments.

In Virginia, Kathleen Ortiz, the chief public defender in Chesapeake, said that prosecutors told her office “that it’s safer for our clients to be in jail during this pandemic, that they are less likely to be exposed.”

Ortiz said she was in general district court on Friday and watched seven bond hearings for people who are jailed before trial in Chesapeake. “And without fail,” Ortiz said, “the commonwealth’s attorneys in court objected to bond on every case.” She said the judge granted bond in all but one of the cases.

“If Ms. Ortiz and her attorneys have nothing to offer other than there is a possibility of a defendant coming in contact with the coronavirus in jail, then she and her attorneys are not addressing the circumstances that have to be considered before the setting of or reduction of a bond,” Chesapeake Commonwealth’s Attorney Nancy Parr responded.

Similarly, in nearby Hampton, Public Defender Matthew Johnson said his office “has filed around 60 bond motions in the Circuit, General District Court and Juvenile Domestic Courts. At this time I don’t believe a single hearing has been docketed.” He said that the judges and Hampton Commonwealth’s Attorney Anton Bell do not feel the coronavirus qualifies as a “change of circumstance” worthy of revisiting a bond request and that Bell argues that inmates are “better off in custody.”

Bell said that the Hampton jail has not had a coronavirus case, so people there are safe. He said he did not oppose releasing nonviolent offenders, but he was determined to analyze each request on “a case-by-case basis,” taking the virus into account. Bell has been openly critical of Hampton judges for continuing to hold jury trials while the number of covid-19 cases in the state grows.

Tracy Paner, the chief public defender in Richmond, sent a letter to the city’s prosecutor, sheriff, judges and probation officials, asking them to “take immediate action to limit the spread of the virus” and suggesting a number of steps to reduce the jail population. She said no one responded. Paner said she watched an arraignment of 21 new arrestees last week, and 10 were ordered held without bond on misdemeanors or nonviolent felonies.

Anne Spaulding, an epidemiologist at Emory University who works on health in corrections, said it makes sense in this public health emergency to reduce the number of people in close quarters behind bars.

“Why we would think anything would be different in a jail population than on a cruise ship boggles the mind,” she said. “It’s time to veer towards the path of incarcerating fewer people. . . . We should be able to get more creative” in maintaining public order.

She agreed that people should not be released without somewhere to go and that not all shelters are well prepared. But she said studies suggest people released from incarceration to stable homes are no less likely to follow public health guidelines than people who have never been involved in the criminal justice system.

Federal public defenders are asking Attorney General William P. Barr to issue an order declining or delaying nonviolent arrests and prosecutions. The Justice Department has not responded.

Authorities in Richmond arrested six men on drug dealing charges last week, including one accused of selling $40 of cocaine. The U.S. attorney for the Eastern District of Virginia, Zachary Terwilliger, said the arrests were a necessary response to a series of shootings in the area and delaying the case could endanger residents. All six were held without bond, prosecutors said.

“There’s a lot of violence around drug turf and drug territory,” Terwilliger said. “People were concerned because we were sending a lot of agents and law enforcement into a community. . . . We pushed forward and pushed forward hard because the violence was continuing to escalate.”

He said that because his office is now prioritizing pressing threats, he expects to argue for more arrestees to be detained, rather than fewer. But he said he would consider a defendant’s individual health risk in that calculus.

“We’re human,” he said. “It doesn’t mean we throw the detention rules regarding dangerousness and risk of flight out the window.”

Fairfax County Commonwealth’s Attorney Steve T. Descano said his office, in the most populous jurisdiction in Virginia, had participated in “a lot of bond motions.”

“I think it’s incumbent on me as a prosecutor and chief law enforcement officer of the county to take the virus into consideration,” Descano said. “The results have been what you’d expect. Some people who were held and you take a look at their scenario, we should let them go. But there are a number of people, a very high percentage of the people we’ve been seeing motions on, they’re already held, and they present a danger to the community and should be held.”

In some jurisdictions, prosecutors have been flexible, but judges have not.

Arlington Commonwealth’s Attorney Parisa Dehghani-Tafti agreed to the release of a D.C. high school senior recently accused of helping rob a man on the Metro by picking the victim’s wallet off the floor. The defendant was on track to graduate from high school in June and had no criminal record; he lives with his family. The probation office recommended supervised release.

Judge Daniel S. Fiore II in Arlington Circuit Court last week ordered the youth held without bond. In his Wednesday order, he cited the teenager’s “behavior in court,” although the defendant’s video appearance was unremarkable.

He also denied bond for a man who violated his probation by refusing to pay at a restaurant; the defendant suffers from mental illness and had spent five months being restored to competency, according to court records.

While public defenders did not emphasize the pandemic in court, they did so in motions to the same judge.

“If detention actually in­creases the risk to the public, as it apparently does during the current public health crisis, then the court must adjust its analysis accordingly, in favor of release,” they wrote in one filing.

Fiore’s chambers did not respond to requests for comment.

Bryan Porter, the commonwealth’s attorney in Alexandria, said, “I have a duty to the community, and that includes the people alleged to have committed offenses. I think I do have a duty to consider the impact of the virus” in whether to support or oppose a request for bond. For those already incarcerated, “we’re already working with the sheriff and the public defender to help clear out the jail.”

Still, Porter noted the need to individually look at each case. “I think there’s a role for us,” he said, “but as prosecutor we can’t grant blanket absolution.”

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