As the COVID-19 pandemic threatens to become a death sentence for people trapped in prisons and jails across the U.S., the actions — or inaction — of prosecutors to decarcerate have had a tangible life or death impact. We examined the responses from prosecutors in the 20 biggest cities in this country. This is the second post in the series. You can read the first here.
6. Philadelphia, Pennsylvania
Philadelphia’s Larry Krasner’s response during this pandemic has been both frustratingly slow and limited. After COVID-19 had already reached the city, his office was still considering ways to alleviate the local jail population. In March, Krasner signed onto a national joint statement urging local officials across the country to stop admitting people to jail, when they pose no serious risk to the physical safety of the community. Then, when turning to action in his own office, he ultimately instructed his office to limit bail requests to serious cases, asked his prosecutors to consider the virus in making charging decisions, and agreed to work with public defenders to identify who could be released from jail.
But results came slowly. By April 3, only about 7 percent of the city’s approximately 5,000-person jail population had been released — a smaller percentage than virtually every other major city in America. Krasner has pointed to judicial inaction as a barrier to success, but judges point back to his office, citing that he took several weeks to approve lists of incarcerated people for release. Moreover, Krasner ran for office campaigning for and has already implemented bail reform policies requiring recommendations of the minimal necessary terms of release for people awaiting trial, but court watchers found in 2019 that Philadelphia prosecutors consistently recommend more than what the court deems necessary. Even through the coronavirus peak, where each bail set could be a death sentence, court watchers have found that the rate of cash bail stayed consistently between 40 to 50 percent of all cases.
7. San Antonio, Texas
Early on, San Antonio’s Joe Gonzales embraced the need for decarceration in response to the coronavirus. In March, Gonzales signed onto a national joint statement urging local officials across the country to stop admitting people to jail, where there’s no serious risk to the physical safety of the community. He also challenged Governor Abbott’s jail order, which limited the release of individuals who are incarcerated to those who can pay bail, as a threat that would overcrowd local jails at a dangerous time. Moreover, he asked his office’s prosecutors to lower bail requests for people accused of nonviolent offenses.
But Gonzales could have done more. As a prosecutor, he could have focused less on getting through as many cases as possible, and more on lowering the amount of cases there are to begin with. Unfortunately, Gonzales continued to insist that grand juries should meet to allow charges to proceed rather than dismiss them. A more decarceration-oriented approach would have been for Gonzales to dismiss a larger swath of cases, especially where individuals are at high risk of contracting the virus, or don’t pose a safety risk to the general public.
8. San Diego, California
As the coronavirus spread through the country, San Diego’s Summer Stephan announced in late March that her office was working closely with the local sheriff’s department to identify people in jail to approve for release. Stephan said the offices would focus particularly on those who are medically fragile and vulnerable, whether pretrial or already serving their sentence.
However, public defenders believe Stephan’s office is not doing enough. For example, in April, California’s Judicial Council set bail at zero statewide for most misdemeanor and lower-level felonies in an attempt to limit the further spread of the virus. Despite these efforts aiming to reduce the number of people who enter jails, Stephan tried to circumvent this rule, arguing in a letter to the Chief Justice that the rule needed a carveout that would allow for prosecutors to argue that a person’s criminal history should prevent release more often, and add conditions for those who are able to avoid jail during the pandemic.
9. Dallas, Texas
Dallas District Attorney John Creuzot swiftly decided that decarceration was the best route to slow the coronavirus in jails. In March, he signed onto a national joint statement, urging local officials across the country to stop admitting people to jail so long as public safety is unlikely to be harmed. The following month, he joined three other Texas prosecutors in challenging Gov. Abbott’s jail order, which limits the release of people to those who can pay bail. Creuzot, for his part, announced that his office has worked with defense attorneys to identify who could be released pretrial and criticized police officers for continuing to arrest people for minor charges such as drug possession.
Unfortunately, releases from the county jail have been slow, to Creuzot’s frustration. In fact, in March, the jail held almost 1,000 people over its usual average — at the height of the pandemic. Unfortunately, by April 26, the jail’s population had only dropped by 500, from 5,879 to 5,309, and had one of the highest numbers of incarcerated people in the state who tested positive for the virus.
Despite his expressed frustrations and advocates demanding reform to help people trapped in jail, Creuzot did not publish changes to his office’s COVID-19 decarceration policies that would leverage his authority to support declining charges, releasing people pretrial or post-conviction, or recommending non-incarceration sentences.
10. San Jose, California
Santa Clara County, which encompasses San Jose, was among the first places to report cases of the coronavirus. Yet San Jose’s Jeff Rosen has not taken much action during the pandemic. Certainly, his office has embraced some change — prosecutors there report they are no longer considering risk of future property crimes worth keeping someone in jail pretrial, reviewed and agreed to 150 people getting released whom they had already argued should await trial behind bars, and were identifying people serving short sentences who should leave early to alleviate jail populations. While steps in the right direction, each of these actions is quite limited.
Moreover, Rosen was far more vocal about policies others were passing to help slow the virus’ spread in jails than his own efforts. For example, he publicly expressed reservations about pretrial releases in April, when he admitted concerns about a recent court order that would allow people accused of misdemeanors and non-violent felonies to be released before their trials without bail.
Not taking enough initiative may be par for the course for Rosen. Even before the pandemic, public defenders have thrown mud at Rosen for maintaining stark racial disparities in his office’s decisions and influences over who goes to jail and who doesn’t. While Rosen has discussed the issue at length, his inaction — much like his limited action during COVID-19 — speaks volumes.
Nicole Zayas Fortier, Policy Counsel, ACLU Campaign for Smart Justice,
& Weronika Bzura, Legal Intern, ACLU
