“I don’t think it’s a question of if the virus is going to break out in the jails, but when,” Brewster says. “And when it does, you run the risk of the state deciding that it’s safer to lock them down, all of them, than to let potentially infected people go. So we had to act quickly.”
Tulsa is in some ways on better footing than other jurisdictions. Brewster effectively lobbied the county to hold bond hearings seven days per week, which has resulted in far fewer people being held in jail overnight or over the weekend. The county also regularly holds bond hearings and first appearances by teleconference, so those can continue without interruption and without additional risk of exposure.
After the state Supreme Court order, the Tulsa County District Court agreed to hold a special docket on March 19 to hear motions for people to be released from jail. Brewster called an all-hands-on-deck meeting, and he and his attorneys began reviewing every active case involving a client still in custody, looking for people for whom they could credibly argue for release, whether by lowering their bond or asking for a personal recognizance bond, which would allow them to get out without putting up any money. After all, says Tulsa public defender Jason Lollman, “the purpose of a bond is to ensure that someone shows up for court. It isn’t to keep someone behind bars because they’re a threat to the community. So if your clients get a bond they can’t afford, they’re not being incarcerated because of their alleged crimes, but because they can’t afford the bond. It’s punishment for being poor.”
In the context of a looming outbreak, that already-unfair punishment could expand to include illness, permanent lung damage or death. “If our office is representing you, it’s already been determined that you can’t afford an attorney,” says Brewster. “That means our clients also can’t afford health insurance. So they probably have a lot of untreated conditions.”
The office eventually identified 82 cases they thought they could plausibly argue for release, mostly people arrested for low-level crimes and nonviolent misdemeanors. They then began messaging with clients and the district attorney’s office to work out a deal. The latter failed to see the urgency of the situation. As the special docket approached, Brewster realized that some attorneys from his office would need to meet with clients in person. That would mean entering the jail, even though experts were warning that the virus had already likely entered many jails, and that jail conditions were ripe for super-spreading. “I told my staff that I wasn’t going to force anyone to do anything they didn’t want to do,” Brewster says. “But I needed four volunteers to go to the jail to interview clients and get the appropriate signatures.” Even though those volunteers would then have to self-quarantine for two weeks, he had no problems getting volunteers, and the office was ultimately able to get 40 people released.
Since the state Supreme Court order, the Tulsa Public Defender’s Office itself is working in shifts. A third of the staff comes in each day, while the others work from home. That way if someone tests positive, the office can continue to operate while those who were exposed to the person with the virus self-quarantine.
Even as Brewster’s office fought to empty the jail, local law enforcement was sending him new clients. “They’re still arresting people for low-level stuff, really petty stuff,” says Lollman. “And the problem is that even if we get them out, they’re still spending time in the jail, exposed to everyone else in there.” For example, on March 20, a man was arrested on an outstanding warrant for failure to pay court fines in a case from 2008. A woman was arrested the following day on a warrant for writing a bogus check for under $500, also in 2008. Another was arrested for an outstanding speeding ticket. At the time I spoke with him, Lollman estimated that about 90 people had recently been booked at the Tulsa jail on misdemeanors, about half of which were nonviolent. “I called the public defender in Oklahoma County [Oklahoma City] to ask how many people they had held on misdemeanors, and it was two.”
Despite the frustration and perilous stakes, Lollman says morale among his colleagues is high. “I’ve seen this office when morale is low,” he says. “That isn’t where we are right now. I think many of us feel a sense of purpose. There’s certainly some fear about the virus, especially for our clients. But that can be motivating. I think most of us feel like we’re not just fighting to keep our clients out of jail anymore, that we may be fighting for their lives.”