Chief Judge Barbera issues order protecting adult prison population

Maryland’s top jurist has called for the state’s judges to meet with prosecutors and defense counsel to identify inmates at heightened risk of dying from the COVID-19 virus and to determine which individuals should be released from prison, where communicable diseases thrive.

Court of Appeals Chief Judge Mary Ellen Barbera on Tuesday also said judges should consider a convict’s risk of contracting or spreading the virus in prison when deciding if he or she should be incarcerated before sentencing or pending appeal. In addition, Barbera told judges to consider a defendant’s risk of contracting or spreading the virus in jail when determining whether he or she should be detained before trial.

The Maryland Department of Public Safety and Correctional Services on Wednesday confirmed 93 cases of the virus within the state prison system. More than half of those affected, 47, are correctional officers, while 18 are inmates. Twenty-two of the cases involve contract workers, while three Division of Parole and Probation employees tested positive for the virus, as did two administrative workers and one clinical health employee.

More than 21,000 people are behind bars in Maryland, in state prisons and in Baltimore city jails, according to data cited in a new report by the Bloomberg School of Public Health at Johns Hopkins University.

The report, issued Monday, recommended measures to reduce the density of incarcerated people, lower the risk of transmission and ensure the physical and mental health of individuals in correctional facilities.

The report’s authors emphasized that ensuring the safety of incarcerated individuals and those who interact with them is critical to preventing the transmission of COVID-19, the disease caused by the novel coronavirus, not only inside correctional facilities but also in the wider community.

“As evidenced by a surge of cases in jails and prisons across the country” – including New York’s Rikers Island complex and Chicago’s Cook County Jail – “and by prior infectious disease epidemics spreading in prisons and jails, institutions of incarceration are environments where COVID-19 is likely to spread rapidly,” the report said.

“(M)easures need to be taken urgently to identify potentially infected individuals, to reduce the possibilities for transmission in institutions of incarceration to ensure that infected incarcerated individuals get appropriate treatment, and to facilitate the safe reintegration of individuals from these settings back into the community,” the report continued.

The report called for a “concerted, state and local government-supervised strategy” across Maryland correctional facilities. The authors noted that it was particularly important to have centralized oversight, with enforcement mechanisms, since many correctional institutions contract out their health care to private entities.

Barbera’s order followed the death on Saturday of a Jessup Correctional Institution inmate from COVID-19 complications, the state’s first prison death related to the virus. The man, in his 60s, had been hospitalized for several weeks. A statement from the Department of Public Safety and Correctional Services said the man, who was not identified, had underlying medical conditions.

Barbera’s order on adult inmates followed a similar directive she issued Monday about protecting youngsters in juvenile detention from contracting the virus.

In a preamble to her order Tuesday, Barbera stated that “the incarcerated and imprisoned populations of Maryland include individuals who, because of age or underlying medical conditions, are at a heightened risk of severe or fatal outcomes if they contract COVID-19.”

Judges, in consultation with the prosecution and defense, should weigh the release of these individuals while paying “careful regard” to the threat they might pose to the community if released, as well as to the rights of their victims, Barbera stated in her order.

Montgomery County State’s Attorney John McCarthy called Barbera’s order a “very reasonable” response to protect prisoners, guards and other prison employees from the virus.

McCarthy said Wednesday that he and most other chief prosecutors around Maryland started taking steps before the order to reduce the prison population.

For example, McCarthy said, he has moved for the early release of nonviolent offenders whose sentences are set to expire within 90 days. He said he has also pressed for the sentences of recently convicted individuals to start after the COVID-19 emergency ends.

“With what we’re facing, they’re no-brainers,” McCarthy said of his efforts.

He added that motions to release inmates at heightened risk of contracting COVID-19 should be considered on a case-by-case basis in keeping with the demands for public safety and the statutory right of their victims to raise objections.

“Everybody deserves individual consideration for release,” McCarthy said. “Hopefully, people will exercise their discretion and make sure the jails are safe places, as much as they can be.”

Maryland Public Defender Paul B. DeWolfe also praised Barbera’s order.

“We have been raising concerns about COVID-19’s impact on our clients since the coronavirus outbreak started, and we are encouraged by the chief judge invoking her leadership to call for the decarceration needed to stem this public health crisis,” DeWolfe said in a statement Tuesday.

The chief judge’s directive also followed a petition by civil rights groups urging the Court of Appeals to order judges to quickly reduce prison and jail populations to prevent the spread of the COVID-19 virus among inmates and corrections officers and beyond. The rights groups said measures to combat the spread — such as keeping inmates, guards and other employees at least six feet apart — are impractical due to the size, structure and mission of prisons.

The civil rights groups that called on the Court of Appeals to act included the American Civil Liberties Union, its Maryland chapter, the Public Justice Center and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

“Following the filing of an emergency petition on behalf of Marylanders in detention, our state’s highest court has issued an unambiguous order about the urgent threat COVID-19 poses in our prisons and jails and the need to get people out of harm’s way,” Sonia Kumar, of the ACLU of Maryland, said in a statement Wednesday.

“That urgency is all too real for Marylanders in detention and their loved ones,” added Kumar, senior staff attorney at the rights group. “This week, we learned that the first person to die of COVID in a Maryland prison was, predictably, a man in his 60s with medical issues. There is still time to save others.”



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