State and local efforts to keep COVID out of jails have been hobbled by poor oversight and unambitious policy, advocates say.
At the time the Governor announced his early release plan, Letiesha Gordon’s son, Dayon Jones, was serving the final months of a non-violent felony sentence in Riverside Regional Jail, near Petersburg. As soon as the plan took effect, Gordon began a crusade to secure her son’s release. But when she requested an “Offender Appeal for COVID-19 Early Release” form for her son, she says the counselor she spoke with at Riverside did not even know such a form existed.
In the months that followed, Gordon called the jail repeatedly; she emailed Mayor Levar Stoney, Governor Ralph Northam, and a senator; she sent several letters. “I know that they thought I was crazy but I was just a mother,” said Gordon, who is the founder of the non-profit A Better Day Than Yesterday, which works with incarcerated people after their release. “I didn’t even contact them on behalf of my organization because it was not about business at that point. It was about my son’s safety.”
After Initial Drop, Decarceration Stalls
This past spring the populations of local and regional jails decreased significantly. From March to April, the total population of Virginia’s jails decreased by 17 percent, and the number of people committed for misdemeanors dropped by 67 percent. However this decline was not enough to keep incarcerated people safe from COVID-19, advocates say, and in recent months the rate of releases has stalled. In October, RCJC’s incarcerated population exceeded 700 for the first time since March, rising from a low of 633 in July. Over half of those incarcerated in RCJC are pre-trial detainees, as of October, meaning they are being held prior to conviction.
“It is irresponsible to say that we’re trying to do the best for the people, but we’re placing them in positions where they could potentially die versus getting their day in court,” said Sheba Williams, who directs the non-profit Nolef Turns and serves on Mayor Stoney’s Task Force on Reimagining Public Safety.
On March 19th, as COVID spread through Virginia communities, Governor Northam declined to use his pardon power to release prisoners. Instead, his office issued guidance to local criminal justice officials suggesting they use sentence modifications, issue summonses when possible, and consider incarceration alternatives. Then a month later, in an April special session, the Virginia legislature gave the Department of Corrections (DOC) the power to release inmates with a record of good behavior and less than a year on their sentence: a category that included around 2,000 of the state’s roughly 30,000 prisoners. These statewide release policies impact local and regional jails because people with felony sentences of under three years, including Leteisha Gordon’s son, are usually held under contract in jails.
Roughly half of those deemed eligible for release by DOC have been released to date.
Lack of Oversight
Part of the problem, political consultant Jessica Pishko says, is that state and local officials have very little authority over sheriffs, who run local jails and serve on regional jail boards. Beyond the 8th Amendment’s prohibition against “cruel and unusual punishment” and an antiquated state law designed to prevent extra-judicial hangings, Sheriffs have almost full discretion over how, or if, they address the risk of COVID in their jails, according to Pishko. (Danville’s sheriff, for example, only made masks mandatory for jail employees after reports of a 72-person outbreak at his jail last month.)
Sheriffs also appear to have the final say on what COVID-related information is revealed to the public. According to Dr. Danny Avula, Director of the Richmond City Health District (RCHD), RCHD is not allowed to release information about COVID rates in Henrico jails or RCJC without permission from those jails’ sheriffs. This has concerning implications. If the Department of Health must have a sheriffs’ goodwill to understand and address health risks inside of local jails, health officials can hardly serve as effective watchdogs in cases of disease outbreak. “There’s little accountability, little oversight, there is zero transparency when we’re talking about the public,” said Sheba Williams, describing the COVID situation in Virginia prisons and jails.
According to Yohance Whitaker of Legal Aid Justice Center, even with significantly reduced jail populations, it is difficult to maintain social distancing in facilities like RCJC. Many local and regional jails have enforced weeks-long periods of isolation as a result. “Prisons and jails and detention facilities are known amplifiers of infectious disease,” Whitaker said. “Measures to keep the illness from spreading like social distancing [and] washing your hands on a regular basis are nearly impossible in such confining spaces.”
A number of inmates interviewed by RVA Mag also questioned the efficacy of RCJC’s lockdown measuring, claiming poor sanitation in common spaces allowed for transmission of the virus even without extended person-to-person contact. According to RCJC inmate Emanuel Crawford, his pod is cleaned once a day by incarcerated people who are not given COVID-informed sanitation guidelines.
“You might have a lazy inmate who just say look, I’m’a clean this and it’ll be alright – and then you just jeopardized everybody,” said Crawford. “In a situation like this, you should be making it mandatory that certain things be sanitized properly. Not only at night, but in the afternoon. Give us the equipment to do this two or three times a day.”
Jail deputies frequently interact with people experiencing medical or mental health crises but, beyond a high-school education, there are no training requirements for Sheriff’s deputies in the State of Virginia. How, or whether, employees are trained is left up to each sheriff’s discretion. This leads to a dynamic, Pishko says, where deputies with minimal training and no social-work experience are given power over vulnerable, often mentally unwell individuals. “I sometimes compare jails to a hospital,” said Pishko. “Picture a hospital where none of the staff want to be there. You have a bunch of sick people, but you have nurses who are like, ‘Whatever.’ ‘I don’t feel good.’ ‘Whatever.’ It gets scary, people die.”
Our legal system has long been stacked against the accused, especially Black and brown people and poor people. But, along with new dangers, the pandemic has also brought new legal and administrative barriers in Richmond-area jails and courts, limiting individuals’ access to counsel and gumming up an already slow legal process, according to Richmond’s head public defender, Tracy Paner.
In response to the pandemic, the State Supreme Court has suspended defendant’s statutory right to a “speedy trial,” eliminating the five-month maximum waiting period between trials for people facing state charges. (“Everybody awaiting trial is in a holding pattern,” Paner said in October. “There’s no way for the defense to require it to go forward.”) Meanwhile, federal jury trials were suspended back in April. In Richmond they resumed, at a much-reduced rate, in October and November. This means that, if you were incarcerated in RCJC and received a federal charge in April, you could still be behind bars awaiting your day in court.
During this period, your access to confidential legal counsel might also have been significantly limited. Since “contact visiting” ended in March, Paner says, lawyers generally have two options for speaking with their clients: through a glass wall or by video. But if a client is in two-week quarantine, either because they are COVID-positive or have recently arrived, the jail requires lawyers to use confidential video-conferencing. This presents two problems, according to Paner. First, the video is often poor quality, and sometimes the tablets inmates use do not work at all. Second, the confidential video-conferencing may not actually be confidential.
“I have seen it, other attorneys have seen it,” said Paner. “We are exiting from the visiting area and we can hear the speaker on the deputy’s computer. We can hear another attorney’s conversation with the client. We have had deputies who think they are helping us listening because there’s a time limit on the video meetings.”
Paner said that, though the public defender’s office has been “very proactive” in seeing bond motions for people with pre-existing conditions, it has not had much success. “The judges are saying things like, well, I know somebody who had it and it wasn’t that bad,” she said, referring to COVID. Richmond Circuit Court Judge Bradley B. Cavedo, who blocked the removal of Confederate statues, has referred to the coronavirus in court as “the wuhan flu.”
Cash Bail Is Alive and Well
In 2018, former Commonwealth’s Attorney (CA) Michael Herring announced that prosecutors in Richmond would no longer seek cash bail for defendants awaiting trial. Though the CA’s office also adheres to this policy under Colette McEachin’s leadership, Paner says prosecutors’ actions still perpetuate the cash bail system.
“The attorneys from the commonwealth do not say the word ‘I object’ to releasing someone in the courtroom for low-level felonies,” Paner said. “But what they do is stand there with records and say, ‘In 1992, he was charged with robbery but it was dismissed.’ That means — wasn’t him, didn’t happen, couldn’t prove it. So they would stand there and bring up things, from 20 years ago or more, that weren’t convictions, in an attempt to sway the judges. The letter of the policy might be followed, but certainly not the spirit.”
“Our policy hasn’t changed,” said Commonwealth’s Attorney Colette McEachin when asked about cash bail. “We still don’t seek cash bail in most situations. Generally, the only time we do is if the defendant is a threat to himself or others, or is a flight risk, which are the two bond determinations that are supposed to be made by statute. Ultimately, anything we recommend is up to the judge, and sometimes the judge agrees with us, and sometimes he doesn’t.”
Whether the fault lies with judges and magistrates, prosecutors, or some combination of both, Richmond’s cash bail continues apace. In early September, The Richmond Community Bail Fund identified 98 people in four local facilities incarcerated because they could not afford bail. (These numbers, acquired by raking through inmate databases and entering Freedom of Information Act Requests, are not comprehensive.) The combined cost of the bonds for these individuals was about $450,000, according to Luca Suede, co-director of the Richmond Community Bail Fund.
“That’s about a hundred people that judges across different counties have already determined could be released,” Suede said. “Now, obviously everybody should be released. I don’t give a fuck how a judge feels. But in the State’s rhetoric — who has the kind of power to do these releases — there is already criteria that’s being deployed.”
Northam’s guidance to Virginia jails stops short of recommending bail be waived or discontinued, however. Instead, it asks jails to “consider ways to decrease the number of low-risk offenders being held without bail.”
“They can get over it together”
In May, Leteisha Gordon’s fears for her son’s safety were confirmed when Riverside Regional experienced COVID outbreak: 36 people at Riverside tested positive, including Gordon’s son. (Fortunately, Dayon Jones did not end up experiencing any serious symptoms of COVID-19.) When Gordon learned her son had tested positive and was on lockdown with another COVID-positive inmate, she called the jail to express her concerns. A sergeant, she says, told her: “They can get over it together.”
“This is somebody that’s helpless,” said Gordon. “He’s in jail. He can’t get to any kind of emergency assistance to help himself. And you don’t have his mother there, so for them to tell me that it was really heartbreaking. You have no idea.”
Finally in June, weeks after her son had tested positive for COVID-19, his counselor called him into his office with Gordon on the phone. He gave her son the form to sign and said it would take three weeks to be processed. After weeks emailing, phone calling and letter writing, Gordon had finally succeeded. A form her son should have had access to months ago — a form that, she insists, would have secured his release as a non-violent offender with asthma — had finally materialized. By that time though, it hardly mattered: Gordon’s son was scheduled to be released on July 13, three days later.
All her effort didn’t save her son a single day in jail.
Top Photo via Riverside Regional Jail