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Editorial Advisory Board: Incarceration under COVID-19

Gov. Larry Hogan has been widely praised for his proactive response to COVID-19. In one area, though, the governor has been less quick to act. Arguing that incarcerated people are safer in penal facilities than in the community, the governor has not instituted a formal policy for decreasing the jail and prison population.

But after denying a petition by the Office of the Public Defender on April 10, the Maryland Court of Appeals issued an order requiring Circuit Courts to identify detained and committed juvenile offenders who could be released to prevent further spread of the virus in juvenile facilities. Courts are specifically required to consider a number of factors to determine whether the juvenile is at particular risk and can be returned safely to the community.

In a later order, the court addressed the release of some incarcerated adults, requiring expedited hearings in some matters, asking judges to think carefully about the use of pretrial detention and holding defendants pending sentencing and appeal, and expediting motions to modify sentence.

This is a good start. But the court’s order addresses only a fraction of the incarcerated population at risk of contracting the virus. The governor and the Court of Appeals should look at additional relief that would allow for the release other groups, including those over 60 years of age, those who are medically vulnerable, and those who are close to mandatory release dates or have already been granted parole but have not yet been released.

Despite the best efforts of the Department of Public Safety and Correctional Services, the reality is that social distancing is all but impossible in prisons and jails. Reducing the number of incarcerated people by releasing these groups would both protect those who are more vulnerable to infection and create greater opportunities for maintaining distance for those who remain in carceral facilities.

Such efforts would not just protect incarcerated people but would also help those working within the facilities — correctional officers, cases managers, nurses and doctors.

Maryland has so far been lucky — we have not seen the spread of the virus within our facilities that places like New York’s Rikers Island or Chicago’s Cook County Jail have experienced. But incarcerated people are being infected and dying in Maryland facilities, and the rapid spread of the virus in other places should prompt us to take every measure that we can to ensure that the infection and death tolls in Maryland facilities are minimal.

We appreciate the Court of Appeals’ efforts to that end so far and hope that the governor and the court will look to further decrease the population of incarcerated adults.


James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

James Haynes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.


The Daily Record is providing free access to its coverage of the COVID-19 pandemic.

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