When Ryan Morgan appeared before a Fairfax County, Virginia, judge for a bond hearing on March 20, his public defender urged a judge to let him out of jail while he awaits sentencing. She presumed that all parties would agree that the county jail was not a safe place to be as the COVID-19 pandemic worsened, especially for someone who pleaded guilty to a nonviolent offense like drug possession.
But the prosecutor, an assistant commonwealth’s attorney, instead said she took no position on whether Morgan, 29, should be offered bond. Despite protests from Morgan’s public defender, Judge Grace Carroll denied him bond and ordered him detained until at least May, the soonest his sentencing can occur because of court closures.
“He’s being held and they won’t even tell me when his next court date is going to be,” his public defender, Jessica Newton, told The Appeal. “[Prosecutors] should be asking for these clients to get released, as opposed to taking no position.”
As the novel coronavirus has become a public health emergency across the United States, many prosecutors are taking actions to address the risk that the virus could spread rapidly in crowded, transient jails. New Jersey has begun to release up to 1,000 people from its county jails. In Fairfax’s neighboring county, Arlington, the commonwealth attorney is siding with public defenders and urging judges to release people on personal recognizance bonds.
Prosecutors in Fairfax Commonwealth’s Attorney Steve Descano’s office, however, have continued to object to bond or to take no position on whether people should be detained during the pandemic. Descano was elected in November amid a wave of so-called progressive prosecutors. His platform called for ending mass incarceration, using a “systemic approach” which would include changing charging practices and not seeking cash bail, among other reforms.
Dawn Butorac, Fairfax’s chief public defender, said she has observed bond hearings since the pandemic started where prosecutors objected to bond and urged judges to send people to the county jail, where the virus can spread quickly.
“The generic rules that we’ve all been told we have to follow—social distancing, washing your hands repeatedly—there’s no way that’s happening in the jail,” she said. “Despite the jail’s best effort to try to squash anyone with coronavirus coming in or being in contact with anyone else, there’s no way that we can know.”
On March 20, Butorac said she saw some prosecutors object to bond for every defendant. Then on March 24, she saw a prosecutor object to someone getting out on bond on a probation violation for a nonviolent offense and object to someone with mental health issues getting out for a misdemeanor charge. In some instances, the judges let people out on their own recognizance anyway, but in others, judges agreed with the prosecutors’ objections, she said.
“The problem that we see is that while there may be a person at the top who suggests that there is a policy in place, it’s not actually being implemented in the courtroom,” Butorac said. “It’s inconsistent what they’re doing, which is problematic, especially in these times of crisis.”
Descano told The Appeal that his office’s policy is to allow people out on bond who are not dangers to their community. When his attorneys object to bond, he said, it’s for valid public safety concerns.
“I am aware of some of the criticisms, but what you have to understand is that this is not a blanket rule,” he said. “We are taking every case case-by-case. While I can’t go into specifics of open cases, I know that there were reasons why my prosecutors took the positions that they took.”
On March 21, Descano released a letter outlining his office’s guiding principles during the COVID-19 emergency. The letter describes a number of proactive steps he says his office will take, including “implementing new office procedural guidance on bond motions” and on “case-by-case bond reviews.” He did not elaborate on the details of the new procedural guidance.
“The policy, the way I read it, is pretty vague,” Newton said. “Mostly the letter says, ‘We’re going to be implementing new things,’ but they don’t say what those things are.”
Butarac said Descano’s office’s reaction to the COVID-19 pandemic is just one example of how she sees “rampant inconsistency” among the attorneys in his office, “despite the fact that there were these policies that we had heard during the course of the campaign that were supposed to be implemented.”
Descano told The Appeal that his prosecutors have been looking at people who might be nearing the end of their sentences who could be released early.
“I think our office has been proactive on the front end and the back end and we are very much taking this seriously,” he said.
In nearby Arlington County, where former public defender Parisa Dehghani-Tafti was elected commonwealth’s attorney in November, prosecutors are mostly siding with public defenders and arguing that people should not be held pretrial.
“They’re taking into consideration the public health issues,” said Bradley Haywood, the county’s chief public defender.
Haywood said that the problem in Arlington County instead is judges who are reluctant to adapt during the crisis. He described watching judges over the last week order at least four people to be held pretrial, including two teenagers for robbery, which is always considered a violent crime in Virginia, even if there is no violence involved. One was a high school senior with no criminal record who was accused of helping rob a man on the Metro by picking up the victim’s wallet from the floor.
Arlington Circuit Court Judge Daniel S. Fiore II ordered him held without bond.
“There’s been an agreement between the defense and the prosecutor that a personal recognizance bond should be set, but they have denied it regardless,” Haywood said. “I know one principle that one of these judges is obviously adopting is that if you’re charged with any violent offense, no matter the facts, he’s not going to let you out.”
A different judge, Louise DiMatteo, ordered Sharmaine Parks held in jail, despite the fact that she is roughly six months into a high-risk pregnancy. Parks, 27, was convicted of robbing a Macy’s in 2012 and sentenced to nine months. She was arrested many years later, after she failed to turn herself in for her sentence. Not only is she afraid that being jailed during the pandemic could be dangerous during her pregnancy, but she also has three other children to care for, and risks losing a potential home if she’s not released by the end of March.
Rachel Collins, Parks’s public defender, said she filed a motion to reduce her time, arguing, among other things, that the pandemic creates a dangerous environment in the jail.
Public defenders say they worry that without an end to the crisis in sight, their clients will be forced to wait in the jails for a long time. If the public health emergency extends beyond the original 30-day delay that the Fairfax Circuit Court judge issued, Butorac said her office will most likely file a new set of motions to get clients out of jail once again.
“I’m very fearful of that,” she said. “It’s probably going to get worse before it gets better, which means our problems here are going to be magnified.”