What Sheriffs Can Do To Slow the Coronavirus Outbreak
Sheriffs wield enormous power, and they can direct it in ways that will help contain the spread of COVID-19 and protect incarcerated people.
This piece is a commentary, part of The Appeal’s collection of opinion and analysis. It is also the fifth edition of The Badge, our ongoing series of explainers on the role of sheriffs.
In the aftermath of Hurricane Katrina in 2005, thousands of people incarcerated at the Orleans Parish Prison—some just for traffic tickets or awaiting trial—were abandoned. Despite the mayor’s call for evacuation, New Orleans Sheriff Marlin Gusman forced prisoners, including children, to remain in place, locked in unsanitary, flooding cells without food, water, or ventilation.
The prisoners were eventually bused to other facilities, but more systemic abuse followed: The entire criminal legal system crashed to a halt, meaning prisoners were stuck, indefinitely, in overcrowded facilities where they were subject to abuse without much information about when they would resolve their pending cases.
This experience is a lesson for sheriffs around the country, who are now facing COVID-19, a pandemic that endangers a large and vulnerable population of prisoners, deputies, lawyers, families, visitors, and medical professionals who flow in and out of county jails daily. Jails record at least 4.9 million admissions per year, according to the Prison Policy Initiative. Of course, this doesn’t include the many people who work in the criminal legal system. This month, a deputy in Hancock County, Indiana, who works in the jail has tested positive for COVID-19.
And yet, sheriffs’ responses to the COVID-19 outbreak have been a mix of security strategies: locking prisoners in their cells, limiting in-person visits, enforcing cleanliness for staff (but sometimes not prisoners), and attempting to segregate the symptomatic. Some sheriffs have even made jokes about the pandemic.
This cavalier attitude belies just how important sheriffs and jail administrators are when it comes to reducing the effect of an outbreak on the people under their care and in the community.
The most important thing sheriffs can do is stop booking people into jail. Jails are hazardous, especially for people who are already at risk, like those with pre-existing health conditions and the elderly. Time in jail disrupts lives, causing people to lose their jobs, housing, and insurance coverage, which all make it more likely they might be rearrested or otherwise vulnerable in the future. It’s also extremely difficult to prevent contagion from spreading once it’s within a jail, endangering everyone who comes into contact with people who live and work in the facility.
Marc Stern, affiliate assistant professor of health services at the University of Washington, compiled advice for sheriffs in the state, which includes reducing jail populations. In an email, he told The Appeal that fewer prisoners means a lesser chance of the virus spreading and a lesser chance of exposure. “Second,” he wrote, “if managing a lot of patients with the virus becomes taxing on staff and/or staffing becomes challenging because of illness among staff, the smaller the jail population, the easier it will be to manage things.”
In Washington, Grays Harbor Sheriff Rick Scott stopped booking people arrested for low-level crimes. He has reduced the jail population there by about 25 percent.
“My big fear is that I suddenly have an inmate population that becomes ill and I have a staff population that becomes ill and I have to figure out a way to keep the jail open and functioning with reduced staff,” he told local news outlets.
Collin County, Texas, Sheriff Jim Skinner has asked police to use cite-and-release, rather than book people into the county jail. In Santa Clara County, California, Sheriff Laurie Smith told the Board of Supervisors that her office was looking into ways to lock fewer people up. “Anyone who can be cited and released, you will,” her office instructed deputies. Harris County, Texas, Sheriff Ed Gonzalez, who recently introduced cite-and-release for many low-level offenses, has said he will focus on the practice as the virus spreads. The ACLU has asked the Los Angeles County sheriff’s department to implement cite-and-release as well.
The most important thing sheriffs can do is stop booking people into jail.
These are largely policies that should already be in place as a way to reduce jail populations. Patrisse Cullors, the chairperson of Reform LA Jails, a group that has long advocated for smaller jails and less custodial sentencing, emphasizes that the current moment is an opportunity for sheriffs and law enforcement to enact and value decarceration. “So much of what we are doing in this moment is a light for public officials,” she said on a recent conference call hosted by The Justice Collaborative. (The Justice Collaborative and The Appeal are projects of Tides Advocacy.)
Sheriffs should also seek to release as many people from jail as possible. More than 1 in 4 people admitted to jail will be jailed multiple times each year, and the vast majority of them do not pose a risk to the public if they are released. Some sheriffs are already able to release people early of their own accord and sometimes do so when there’s overcrowding.
Aaron Littman, a clinical teaching fellow at UCLA School of Law who is researching sheriffs and jails, told The Appeal over email: “County sheriffs—in whose custody over 90% of jail detainees are held—have significant statutory authority in many states to reduce their jail populations, including by releasing both pretrial and sentenced prisoners from confinement.” Littman recently published a law review article exploring the state statutes that give sheriffs this authority.
In places where doing so requires a court order, the sheriff can advocate and lobby for judges and prosecutors to hasten the release of most prisoners. Gonzales, the Harris County sheriff, wrote on Twitter: “Ultimately, I do not make release decisions, but can only advocate. And advocating I am. Jail health is community health.” In Sacramento, a judge gave the sheriff authority to “grant the accelerated release” of prisoners with 30 days or less remaining on their sentence.
Some sheriffs have the power to unilaterally release many pretrial detainees as authorized by state or local law. Manohar Raju, the San Francisco public defender, asked Sheriff Paul Miyamoto to consider the release of jail prisoners who have less than six months left to serve. “These are cases where the court has already decided that it’s safe to release someone into the community, and will be doing so in the very near future,” he wrote. In response, Miyamoto wrote that “those who are under our care receive medical treatment that is among the best in the county” and declined to change the current policy.
Jail health is community health.Ed Gonzales, Harris County, Texas, sheriff
Many of the current jail plans focus on screening people moving in and out of the facilities, but some sheriffs have opted to stop in-person visits altogether. Stern, the University of Washington professor, recommends that jails suspend in-person visits but told The Appeal over email that sheriffs need to ensure that people are able to communicate with their family and attorneys through other means. Although video chats and phone calls are good options when face-to-face visits aren’t available, they can be expensive. (Some jails are making the calls free, though in New York, free calls will be limited to one per week per prisoner.)
Premal Dharia, a former public defender and the founder and director of Defender Impact Initiative, pointed out in a phone conversation that much of the attorney-client relationship relies on reviewing evidence and documents, which is difficult to do over video chat, which she called a “stop-gap.” There have also been instances where sheriff’s departments have recorded the conversations of defense attorneys, she noted.
“It is critical that our public officials, including sheriffs, do not react reflexively in response to this pandemic,” Dharia explained. “There are reasons we have long-standing laws about when incarcerated people must be seen by courts. Fundamental among these reasons is that no one should languish inside a jail—much less a potentially infected one—without the ability to be heard and to potentially be freed.”
When incarcerated people cannot have their hearings, confront the evidence, or advocate for themselves in court, we effectively trap them with no recourse. The emergency for incarcerated people is twofold: Their health and safety is at stake, and so are their rights in our criminal system. When our system takes the extraordinary measure of removing someone from their home and community, it is our responsibility to protect both.
As the lessons of Katrina taught us, emergencies create a cascade of problems throughout the system. People can languish in jail, unable to sign plea agreements, make bail with a family member’s help, or see a judge. Cases are reset and delayed. And, if the pandemic gets worse, jails may lose staff just at the moment when they are trying to treat sick residents. Most of all, it’s important that sheriffs view their staff and the people under their care as a part of the community whose health is linked to the well-being of everyone.