OPD petitions high court to act quickly to reduce juvenile jail population

By: Heather Cobun Daily Record Legal Affairs Writer April 3, 2020

Jenny Egan, chief attorney for the Baltimore Office of the Public Defender juvenile division. (Submitted photo)

Maryland’s public defenders are asking the Court of Appeals to immediately reduce the number of youths in juvenile jails and prisons in light of the coronavirus pandemic.

“This petition seeks extraordinary relief for extraordinary circumstances,” begins the petitioners’ brief, filed Friday. The filing was made on behalf of several detained juveniles and “others similarly situated” and names the administrative judges of the state’s circuit courts.

Citing public health experts who have said the state-run detention facilities will be “the epicenter of the pandemic” if immediate steps are not taken, the brief argues for the release of youths who can safely return home to families and caretakers with community supervision.

Maryland has already seen confirmed cases of COVID-19 in jails and prisons, though none have been reported in juvenile facilities as of the date of filing.

“The only effective way for an individual to stop the spread of COVID-19 is physical distancing,” the brief said. “In crowded, congregate facilities it is impossible for young people to maintain the recommended distance or take the necessary steps to sanitize the surfaces they encounter. Release is the only effective means of protecting young people from contracting and transmitting COVID-19.”

There are approximately 350 juveniles in Maryland’s jails and prisons, according to a news release from the Maryland Office of the Public Defender, and health professionals say that “they cannot be rendered safe.”

Steps taken by the Department of Juvenile Services to mitigate the potential spread of the virus, such as “medical isolation units” — in which detainees are placed in a cell alone — will hurt young people’s mental health, according to the brief. Family visits have been prohibited and youths are subject to strict social distancing requirements.

Jenny Egan, chief attorney for the Baltimore OPD juvenile division, said Friday that attorneys have tried asking the Department of Juvenile Services to push for the release of certain detainees and courts to move forward with hearings. The “confusion and logistical difficulties” of the courts’ being closed to the public has further complicated matters, Egan said, adding, “You can’t walk into the court and get stuff done.”

Attorneys are concerned that the response from DJS has been insufficient and that courts have failed to recognize the risk to juveniles.

“Part of the problem and part of what we saw is that there was a resistance to and a slowness to recognize how the crisis will ravage facilities,” Egan said. “It is not a question of if, it is a question of when. And we know that all the things DJS has put in place won’t stop kids from getting this.”

An outbreak in a juvenile facility threatens the health of residents and staff as well as the greater community, according to the brief.

“An outbreak of COVID-19 in a congregate environment could quickly overwhelm local health care services and force individuals to be
transported to more distant hospitals and clinics, utilizing more resources and potentially exposing health care (workers) in communities where the disease is not yet prevalent,” according to the brief.

Egan said that it has been difficult to communicate with clients, since they can no longer meet in person, and added that she worries the current practices of video calls and phone hearings are “not constitutionally adequate.”

“It is a confusing, dizzying and terrifying experience,” she said. “I have concerns about whether (the juveniles) are fully understanding the process and what’s happening with them.”

The petitioners claim the Court of Appeals has jurisdiction to provide “extraordinary relief” and can issue a writ where the “interests of justice require (the court) to do so in order to restrain a lower court from acting in excess of its jurisdiction, otherwise grossly exceeding its authority, or failing to act when it ought to act.” Court of Appeals Chief Judge Mary Ellen Barbera also has the ability to direct lower courts, according to the brief.

Egan said she recognizes that a “prerogative writ,” which directs another arm of government, is extraordinary, but she said there are no circumstances “more extraordinary than the ones that we find ourselves in due to this pandemic.”

“The circuit courts can’t take the extraordinary measures necessary without guidance and the Court of Appeals can’t get those cases under normal circumstances or the appellate process,” she said. “We believe only the high court has the power to do what needs to be done.”

The petitioners raise constitutional concerns if people, particularly juveniles, are kept in a correctional setting during the pandemic. Failing to protect youths from the virus violates their right to due process and the prohibition against cruel and unusual punishment because they have a “right to be protected from a serious risk of harm and their right to be free from punishment,” according to the brief.

The petitioners ask the high court to direct courts to vacate detention orders and require the immediate release of youths who are medically at-risk, as well as those displaying symptoms of the coronavirus, those younger than 15, and anyone detained solely because of failure to appear, technical probation violations and any other reason that would suggest they do not pose a safety risk. The petitioners also request that juvenile and criminal courts take steps to reduce the number of new youths entering state facilities.

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