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Despite COVID-19 Cases, Mississippi Is Slow to Review Jail Populations For Release

The state’s public defender asked the state Supreme Court in April to speed up reviews of people held pretrial, but advocates say it’s unclear if district courts have complied.

Photo illustration by Elizabeth Brown. Photo from Getty images.

Over the last several weeks, reports of COVID-19 cases in Mississippi county jails have appeared piecemeal. 

On April 11, a Hinds County correctional officer tested positive for the disease, and as of May 26, two more have it. A man at the Neshoba County Jail who told staff he had a headache tested positive for the novel coronavirus on May 8. And four correctional officers at the Lincoln County Jail had tested positive for the disease as of May 21, Steve Rushing, the county’s sheriff, told The Appeal

As the disease spread, two officials sought to get people out of the state’s jails. State Public Defender André de Gruy and State Attorney General Lynn Fitch filed an emergency motion on April 9 with the state Supreme Court, requesting that county jails submit biweekly reviews of their incarcerated populations. More frequent accounting, they argued, would help to identify and speed up eligible releases, as court terms in the state could be delayed

Since 2017, Mississippi jails have been required to produce a roster of people in their custody, their charges, and the date they were brought into jail ahead of each circuit court term. Under the 90-day rule, as it’s known, senior circuit court judges must then evaluate bail for every person who is eligible and has been in jail for more than 90 days.

But the rule is plagued with a lack of uniformity and accountability. Not all jails submit this roster, and not all jails keep data in the same way. Many counties do not publish an online jail docket, and some still keep a handwritten log of people in custody. On average, nearly half of the jail population in Mississippi has been detained for over 90 days, many serving pretrial time only because they are poor. 

On average, nearly half of the jail population in Mississippi has been detained for over 90 days, many serving pretrial time only because they are poor.

Seven circuit court judges filed responses opposing the motion, some claiming reviewing the jail population would be too much work during a pandemic. Even Fitch, the AG, dropped out, citing the judges’ dissents.     

“Judges, sheriffs, prosecutors, and public defenders are closely monitoring the jail population,” Fitch wrote in an April 22 notice of withdrawal. “Steps taken in some districts are even more than what was requested in the joint motion. … There are currently no reported cases and no major outbreaks inside our local jails.”

Ultimately, Mississippi Chief Justice Michael Randolph offered a narrow opinion: Jails in counties that had not completed a review of their pretrial population in the 30 days prior to his April 23 ruling had a week to produce a roster. By May 7, circuit court judges in those counties had to decide how many people on those lists—if any at all—would be released. 

But de Gruy, the public defender, said he had heard of only one district conducting a formal review of its jail population as a result of the ruling. Circuit Court Judge Prentiss Harrell’s office confirmed to The Appeal that the Fifteenth District conducted a review via Zoom. 

“We don’t have a great way of monitoring what happens in the counties, which is a lot of what our concern was,” de Gruy said. “Of course, in the pandemic, it is so much more important to be trying to get those numbers down.” 

Among the judges who dissented were those in the Second Judicial District, which includes Hancock, Harrison, and Stone Counties. In an April 14 memo, three circuit judges wrote that biweekly reviews of jails in their counties would be “tremendously burdensome.” 

“This is particularly true now with the additional burdens already placed on the Sheriffs’ Departments due to the Coronavirus, including additional enforcement duties related to [the] shelter in place order, fewer staff members on each shift to facilitate social distancing, and such,” they wrote.     

A week prior to Randolph’s order, the Second District released 20 percent of those jailed for nonviolent offenses, and its memo claimed lower-than-average numbers in at least one Harrison County jail. 

Only 19 counties provide online access to criminal court records. Sixteenth District Judge Lee Howard, who also dissented from de Gruy’s motion, said it would be harder for judges to review cases in his four-county district when only one of those counties, Clay, posts its criminal cases online.

According to data from the MacArthur Justice Center, the Clay County Jail population has decreased by about one-third over the last month. Scott Colom, district attorney for the Sixteenth District, told The Appeal that the jail in Lowndes County, another part of his district, has also decreased, though some state prisoners will serve their time there until the state’s Department of Corrections starts allowing transfers from county jails. 

Colom believes his district has acted “aggressively” to date, by identifying “everybody that judges felt like could be safely released.” The directive from circuit court judges, he said, has been to focus on the jails to reassess bonds, as courts are largely not in session and not conducting trials and grand juries. 

Colom called Randolph’s ruling “a step in the right direction” to prevent the spread of COVID-19. 

“I think that they took [into] consideration that there appeared to be some jurisdictions that were already doing what the state public defender requested, and even more,” Colom said. “It seems to me that they decided that a one-size-fits-all approach wasn’t appropriate. “

How law enforcement and legal officials continue to respond to the pandemic matters most, said Colom. 

“The discretion is up to many different players,” he continued. “There’s no magic way to do it. Everybody’s got to be reading from the same playbook.”

The tri-county Second District is only 17 percent more populous than Hinds County, home to the state’s capital of Jackson. However, its jail population is nearly double that of Hinds.

Leaders in Hinds have worked together to thin its jail population by 16 percent this year, hitting historic lows. As of May 27, there were 376 people in the county’s jails, per the sheriff’s department. 

“One district attorney can be as impactful as 10 public defenders, because we make the decisions about how cases move forward—if they move forward at all,” said Jody Owens, Hinds County’s district attorney. “I feel that I have an obligation to make sure that my county … which is a huge supplier, frankly, of individuals who will go into the Mississippi Department of Corrections, does more to limit that population.”    

Hinds County has been conducting a review of its jail population every two weeks since January, Owens told The Appeal. It is one of the few counties with online jail data and a full-time public defender’s office, which Owens says has been working with his office, circuit judges, sheriffs, and district attorneys to release people held pretrial or who can’t afford bail. 

Owens criticized the counties and judges that claimed more regular reviews would be too much work: “I think that’s a position that defeats itself,” he said. “Nobody wants more responsibility until they realize the significance of the problem. Once you do it, the other problems in your system won’t exist because you can move the docket faster.”

Cliff Johnson, director of the MacArthur Justice Center, thinks there’s an additional factor that has contributed to Hinds County’s success in reducing its jail population. Even in the Blackest state in the country, it’s rare to see what the county has: a Black district attorney who used to be a civil rights lawyer, an all-Black circuit court bench, a Black sheriff, a majority-Black population, and a coordinated effort for all of these entities to work together, Johnson said.   

“Race, race, race, always race in Mississippi,” said Johnson. Can the same drop in jail populations that’s happened in Hinds, he asked, “happen in counties that look very different?

The counties that make up the Second District are significantly whiter than Hinds County: Hancock is less than 10 percent Black, Stone is about 20 percent Black, and one in four Harrison County residents is Black. All of the circuit court judges in these counties are white.

The Sixteenth District spreads across the Mississippi Black Belt and consists of two majority-Black counties—Clay at 59 percent and Noxubee at 72 percent—and two not far from it—Oktibbeha at 38 percent Black and Lowndes at 45 percent. Yet Colom, the district attorney, is the only nonwhite arbiter of justice there.

The MacArthur Justice Center has tried to track the outcome of Randolph’s ruling by asking circuit clerks across the state to share jail rosters. But even if some districts release more people in light of Randolph’s ruling, Johnson said it will be hard to identify whether the ruling was the direct cause.

“We can ask anecdotally to try to talk to public defenders about, ‘are you seeing people get out, what’s happening with releases,’” he said, “but, to the extent that you or I want to know how many people have been released as a result of the reviews conducted following [the ruling], that’s not an easy number to get.” 

As of May 27, more than a month after the ruling, Johnson’s efforts were still unfruitful. “I don’t think there is a way to find out,” he said in an email. “Frustrating.”