Let People Out of Jail

The closure of local courts in response to the coronavirus pandemic is causing versions of the same crisis in cities across the country. Arraignments have been delayed and trials postponed. Defense attorneys are confused about how to challenge wrongful or needless detentions. And as police keep making arrests, already overcrowded jails risk being overwhelmed, even as public-health officials urge social distancing.

A COVID-19 outbreak in a jail first harms the men or women locked up there, innocent and guilty alike, then staff and their families, then, ultimately, the public. Prisoners with serious symptoms wind up in the local hospitals, worsening shortages of doctors, nurses, masks, ICU beds, and ventilators. People who have never seen a city jail could die because too many others were kept in one. Sprawling state prisons in rural areas could flood tiny country hospitals with patients.

Barbara Bradley Hagerty: Innocent prisoners are going to die of the coronavirus

Michigan’s governor, Gretchen Whitmer, is the latest state official to take action, issuing an order on Sunday that urges the release of “inmates who are aging or those with chronic conditions, pregnant women or people nearing their release date, and anyone incarcerated for a traffic violation and failure to appear [in court] or failure to pay.”

Philadelphia is among the major cities that has worked to avert a worst-case scenario. “Police Chief Danielle Outlaw told officers on March 17 to stop bringing people arrested for non-violent crimes like burglary and vandalism to police stations and jails,” the Marshall Project reported. “Instead, they would be issued arrest warrants to be served later ‘as conditions dictate.’” District Attorney Larry Krasner has been working for weeks to release prisoners locked up on minor charges because they couldn’t come up with bail, prisoners on the cusp of finishing their sentence, and prisoners arrested for certain parole violations, such as testing positive for marijuana use.

In taking these measures officials weighed whether public health and safety were better served by keeping prisoners in jail or releasing them, just as they balanced the need for due diligence with the public-health cost of acting too late. Even the most thoughtful officials will disagree about the optimal approach in a given state or municipality. But some officials will hesitate because they fear their actions will be portrayed as “soft on crime.”

A recent episode of Tucker Carlson’s program illustrates how a prudent desire to limit the spread of the coronavirus in jails can be misconstrued as bleeding-heart liberalism. Carlson’s guest, U.S. Attorney Bill McSwain, is a critic of criminal-justice reforms. In the March 27 interview, McSwain asserted that Philadelphia jails had no confirmed COVID-19 cases and counseled a wait-and-see approach. “If we have signs of the virus, people are going to be isolated,” he said. “Visits to the prison have been cut off. And we can react appropriately if a problem exists.” That viewpoint is substantively wrong. COVID-19 is in many cases spread by asymptomatic carriers and others who are infectious for days before showing signs of illness. By the time “signs” manifest in crowded jails, it may be too late to avert an outbreak that will harm prisoners and increase the burden on local hospitals.

Read: The social-distancing culture war has begun

But Fox News viewers were not informed of these counterarguments, or that the Fraternal Order of Police in Philadelphia had issued a statement supporting the new arrest policies, because the Fox segment was presented with the willfully ignorant premise that local officials were not making thorny trade-offs forced on them by an emergency, but rather actively trying to make their city more dangerous.

A transcript conveys the egregious lack of context:

Carlson: Tell us what’s happening in Philadelphia and how your leaders have used this pretext, this excuse, to make the city more dangerous.

McSwain: Well, here’s the problem that we’re dealing with in law enforcement, Tucker. There are essentially two groups of people who are trying to take advantage of this pandemic for their own selfish purposes: criminals and progressive prosecutors. And in many ways, these two groups are, I think, indistinguishable. And I say that because they want the same things. They essentially want a moratorium on any arrests, they essentially want our jails to be emptied, and both of these groups are, I think, a clear threat to public safety.

Carlson: You know, this is not really a threat to those of us who are in good health, armed men, okay. But to vulnerable people in our society, this is a massive threat. I mean, normal people, law-abiding people, who can’t defend themselves. Does this occur to these prosecutors that they’re hurting people?

McSwain: I don’t think it does. I think what occurs to them is they want to promote their radical ideology, which puts violent criminals on the streets. And they see an opportunity here. We have a district attorney here in Philadelphia, Larry Krasner, who is calling essentially for a mass release of criminals up to and including people on death row. And he’s trying to create panic out of this situation when currently we have no prisoners in the local Philadelphia jails that have the virus. And I believe there is one prisoner in the state system that has the virus. We all need to take this seriously, but this is not the time to fling open the prison doors.

Carlson: So what you’re saying is that there is no actual reason to do this other than “we’re all distracted, so they can.”

The assertion that there is “no actual reason to do this other than ‘we’re all distracted’” is a bald-faced lie. Fox News viewers could have been provided with Krassner’s publicly articulated reasons.

As the Philadelphia District Attorney’s Office put it in a press release:

Safely and swiftly depopulating corrections facilities is a matter of life or death for all of us, including corrections officers, health care professionals, and all corrections workers and their families; law enforcement and attorneys; incarcerated people, including those who have not been convicted of crimes; and communities at large. Safe and swift depopulation of these facilities will enable those who become ill to be treated and appropriately isolated; mitigate panic-fueled staff attrition and prisoner violence; and enable the criminal justice system to be full partners in flattening the curve, so that infections are minimized.

To disagree with any of Philadelphia’s judgment calls is fine. To portray its officials as radical outliers when many jurisdictions have taken similar measures is irresponsible. To portray them as motivated by an affirmative desire to make the city dangerous is malign and mendacious.

A pandemic does not demand unity or unanimity. But Americans who falsely characterize the motives of fellow citizens in a time of crisis while obscuring the reasons for high-consequence disagreements are hurting their country at the worst possible moment.

Read: How the pandemic will end

And the health problems of prisoners have never been more likely to cascade through whole communities. “Since March 22, jails have reported 226 inmates and 131 staff with confirmed cases of COVID-19,” Reuters reported on Saturday after surveying America’s 20 largest city and county jails. “The numbers are almost certainly an undercount given the fast spread of the virus. Hot spots include Cook County jail in Chicago, Illinois. Since the first case was confirmed there on Sunday, the virus has infected 89 inmates and nine staff. Test results are pending for 92 other detainees.”

In states and cities where the coronavirus has not yet spread to jails, fast action by clear-thinking judges, police chiefs, prosecutors, and defense attorneys could still save many lives. “People over the age of 50 inside a correctional facility are most at risk from this virus but also pose little to no threat of violence upon release,” The Appeal counsels. “In addition, due to often burdensome administrative hurdles, many incarcerated people with serious or life-limiting illnesses have already begun a compassionate release application process and have developed a housing and medical plan for release. These people should be released. And finally, release should include any person who has already been positively adjudicated in a pardon or parole process and is awaiting release pending administrative processes.”

If you live near a jail or prison, urge local officials to consider releasing low-level offenders unlikely to threaten public safety so that outbreaks don’t lead to preventable deaths. Otherwise decision makers might think demagogues opposed to any releases are the only ones paying attention.