In an emergency petition Monday, the American Civil Liberties Union of Pennsylvania asked the state Supreme Court to order the mass release of inmates from county jails across the Commonwealth.
The ACLU asked the state's justices to order trial courts in the state’s 67 counties to release “broad categories” of inmates. Such categories, the ACLU said, would include those who are: booked on minor criminal charges or probation violations; within three months of completing their minimum sentence; eligible to leave correctional facilities on work release or intermittent sentences; detained before trial solely because they cannot afford to post bail; or face the greatest risk of serious illness or death from COVID-19.
The action comes a day after an inmate at a state prison near Philadelphia tested positive for COVID-19. Last week, an Allegheny County Jail employee was also diagnosed with the disease, and according to an epidemiologist serving as an expert for the ACLU, inmates and staff members at Delaware County and Philadelphia jails have likewise tested positive. Activists had earlier called for dramatic reductions in jail populations amid the coronavirus pandemic.
“This is an unprecedented event in our lives,” ACLU of Pennsylvania Legal Director Vic Walczak said. “There is growing alarm among public-health experts that, unless urgent action is taken to release people from the jail … it’s going to be the epicenter of the pandemic.”
Walczak noted that governments throughout the world have ordered residents to stay home and businesses to close, in an effort to ensure people maintain distances of at least 6 feet from one another and, thus, reduce the spread of coronavirus.
“In our jails and prisons, that kind of safe social distancing is impossible,” Walczak noted. “You’ve got people who are double- and triple-celled. In many of these jails, people are held 30, 40, 60 folks to a large room where they all sleep, eat, and use the bathroom together.”
The ACLU also contended in its request to the Supreme Court that jails do not have the supplies necessary to enhance hygiene and disinfecting measures within their walls. Nor do the facilities have the capacity to screen people for COVID-19 or to isolate symptomatic individuals, the civil liberties organization argued.
“This is not just a prisoners’ rights issue,” the ACLU added. “Once the virus enters the jails, the regular movement of staff and visitors in and out means that prison walls and razor wire can neither slow nor stop viral spread.”
Representing the Pennsylvania Prison Society and five jail inmates in Delaware, Lehigh, Montgomery, and Pike counties, the ACLU urged the state Supreme Court to provide “extraordinary relief'' under what's called “king’s bench" jurisdiction. That doctrine gives the high court the power to take up a case immediately, rather than wait for it to work its way through the lower courts.
Walczak said he didn't know when, or if, the court would hand down a ruling. That decision is “entirely up to the justices,” he said. “We have not received any indication from the court how they might respond to this.”
Walczak said there are grounds to argue that confining inmates during the current pandemic violates those individuals’ constitutional right to due process – and also subjects them to cruel and unusual punishment, in violation of the federal and state constitutions. But he said his organization decided to make its case largely based on public health concerns.
In its petition, the ACLU said district attorneys could seek to stop the release of individual inmates by presenting public-safety concerns to the presiding judge. The petition noted that Supreme Courts in Montana, New Jersey, South Carolina, and Washington have taken steps in line with the ACLU’s recommendations.
The ACLU described Pennsylvania’s approach to the pandemic as “piecemeal,” with courts in most counties opting for a “business-as-usual” approach and releasing “very few, if any, people.” But its lawsuit acknowledges that Allegheny and Lackawanna Counties, at least, have taken significant steps to accelerate the review of individual cases for release.
As of 12 p.m. Monday, 595 people had been released from the Allegheny County Jail, according to county spokesperson Amie Downs. County data show that 1,818 people were being held at the jail Monday. And on its website, the jail said it had increased the amount of mandatory cleaning across the facility, while also suspending nearly all visits to inmates.
“Big kudos to what’s happening in Allegheny County,” Walczak said. “Frankly, they are the leaders that we’ve been able to see across the Commonwealth of Pennsylvania.”
Walczak added, however, that Allegheny County should go farther by more quickly freeing the broad groups of inmates the ACLU lawsuit recommended for release.
But Allegheny County Stephen Zappala's issued a Monday-afternoon statement urging caution about such an approach.
The statement noted that the DA's office had joined in efforts to reduce the jail population earlier this month. Quoting Walczak's statements to WESA about the county's track record, Zappala's office said they showed "our community and the ACLU is looking to Allegheny County and this office to serve as a model for the rest of the commonwealth."
Still, the statement added, "[W]e are dealing with an intersection of public safety and public health that has never happened before. We would call on our community to have confidence that the choices made by this office with respect to the release of certain persons from the county jail, will balance the importance of the safety of the public and the rights of victims, with the health and welfare of those directly impacted by these decisions."
* This story was updated at 3:51 p.m. on Moday, March 30, 2020, to add a statement from Allegheny County District Attorney Stephen Zappala's office.
