“It’s only a matter of time.” That’s what we keep hearing: It’s only a matter of time before coronavirus hits the jails.
It now looks like the time has come. On March 16, a corrections officer at the King County Jail tested positive for COVID-19. The King County Department of Adult and Juvenile Detention maintains that there are no other confirmed cases in the jail, but we have no idea how many people have actually been tested. As many others have noted, jails are uniquely dangerous places in time of a viral outbreak. Thousands of people cycle through our country’s jails daily — people picked up off the street for warrants on criminal trespass, or shoplifting, or all sorts of low-level crime. Inmates are held in close quarters.
Even the simple act of handcuffing adds a risk — you can’t cover your mouth if you cough while your hands are tied behind your back. Given the scope of this crisis, it is inevitable that the virus will spread in the county’s two jails, where an estimated 2,000 people are currently housed.
But my concerns are not just about health. I can’t visit my clients in jail without putting myself at risk. I can’t do site visits and interview witnesses. I can’t ask our social workers to meet with clients and put together treatment plans. I can’t negotiate with prosecutors in-person — it’s difficult to even get them on the phone.
Right now, jury trials are suspended until April 24, and it is possible the suspension will last much longer. Once trials resume, there will be a massive backlog. The Sixth Amendment guarantees a right to a speedy trial, but because of the coronavirus, those who are being held on bond amounts they cannot afford are looking at many more months in an unsafe jail. COVID-19 has ground the criminal legal system to a halt, which is understandable in a pandemic of this magnitude, but our clients in jail are the ones left suffering because of it.
King County Superior Court judges allow defendants to ask for another bond hearing to be released pretrial only if there is a “change in circumstances.” This is a vague standard and often applies to situations when, for example, our clients have a treatment and release plan. In light of COVID-19, several defense attorneys have tried to file motions asking for bond hearings on the basis of a “change in circumstances.” Shockingly, until an order from the state Supreme Court came down this week, some courts and the prosecutors took the position that this pandemic is not a “change in circumstances” unless we present evidence that our clients are uniquely at risk of contracting and suffering from the virus. The court was not even allowing defense attorneys to make our motions for release.
This position left me dumbfounded. All of us have seen our lives upended by this crisis. Everything about this pandemic is a “change in circumstances.” That some judges were refusing to hear bond hearings unless a person could show they were uniquely vulnerable to coronavirus flies in the face of everything we know about how best to contain the transmission of this deadly illness. Even with the Supreme Court’s order, many defendants are waiting weeks for a bond hearing.
King County’s actions have been out of step with public health guidelines and the justice system in other major cities. More than 30 district attorneys in cities like New York, Baltimore, Boston, Philadelphia and San Francisco have signed on to a letter stating their intention to release all people held on pretrial detention unless they pose a serious risk to public safety. Notably absent from this list is the supposedly progressive prosecutor in King County, Dan Satterberg.
This crisis calls for bold leadership from Satterberg. Prosecutors need to stop objecting to our release motions on nonviolent offenders in the jail, and violent offenders should also be evaluated on a case-by-case basis. We also need the Seattle Police Department to stop arresting people on misdemeanor cases and all nonviolent cases, as well as people who have warrants for those cases. Anything short of that is putting our clients in jail at risk and making a mockery of basic due process.
This past Saturday, I handled the jail calendar in the King County Jail. This is a calendar for warrant returns on misdemeanor charges, followed by hearings in which the prosecutor requests to hold defendants in jail for up to 72 hours to determine whether they will file felony charges. When defendants are called up to the bench, they usually stand right next to their defense attorneys. On Saturday, they were asked to sit in a chair, 6 feet away from the attorneys. But before the hearing, all 20 or so defendants are crammed in “the tank,” a small holding cell, which my colleague and I had to enter to talk to each and every one of them. The visuals could not be starker: The judge and the prosecutor were at a safe remove, but public defenders were working side-by-side with our clients, all of us at risk.
Public health concerns the whole public, and whether the court and the prosecutors would like to admit it, people in jail are part of the public, too.