Prosecutors control the entry points into the criminal justice system. They decide whether a case that began with an arrest is prosecuted and what charges are brought, and they have significant influence over how a case progresses from there. This considerable discretion can be used to respond proactively to a crisis, like Covid-19, by diverting people away from crowded courtrooms, jails, and prisons, or postponing cases and hearings that are not urgent.
Brennan Center Recommendation: Prosecutors should decline to initiate new prosecutions for low-level offenses that do not implicate public safety.
- Baltimore State’s Attorney Marilyn Mosby announced that, in order to curb the spread of coronavirus in the local jail, her office would dismiss pending charges against anyone arrested for drug possession, prostitution, trespassing, minor traffic offenses, open container, and urinating in public.
- The Durham District Attorney’s Office implemented a pretrial release policy in February 2019 in which prosecutors recommend people charged with nonviolent crimes offenses to be released from custody without bail. Since the Covid-19 outbreak, the office has begun stepping up this review process to identify people who can be safely released through either modification of their release conditions or dispositions of their case, namely those over the age of 60 and with preexisting health conditions. The office is also working with local police to ensure that only those who pose a risk to community safety are arrested and detained.
- Brooklyn's District Attorney announced on March 17 that his office would immediately decline to prosecute low-level offenses that don't jeopardize public safety.
- On April 28th, 2020, Arizona’s Maricopa County Attorney’s Office announced plans to delay thousands of charges in order to keep people out of courtrooms and slow the spread of the Covid-19 virus.
- Seattle District Attorney Dan Satterberg is only filing charges in exceptionally violent cases, after which he would file motions to continue arraignment for other felonies for 30 days.
- Following videos of violent arrests and complaints that the NYPD was unfairly targeting people of color, four of New York City's five district attorneys announced that they will not prosecute social distancing arrests.
- On February 1, the Wayne County, Michigan prosecutor announced that their office would dismiss all charges related to violations of Gov. Whitmer's coronavirus executive orders.
- On February 17, Chittenden County State’s Attorney Sarah George stated that Vermont should work to pass policies to decriminalize drugs. The push for the bill comes after an increase in drug-related deaths during the pandemic and a lack of support for Vermonters who use drugs in the state's Covid-19 relief response. However, not all lawmakers are supportive of the bill, and the state's attorney general does not endorse even limited decriminalization of certain substances.
- On March 26, the Department of Justice committed to continuing to investigate complex Covid-related criminal and civil enforcement actions throughout 2021. This increased enforcement will be related to the Paycheck Protection Program, healthcare, securities, and government contracts and procurement.
- On March 30, The city of Baltimore announced that it will no longer prosecute low-level offenses such as drug possession, prostitution, and minor traffic violations. The decision was in response to the city's choice to make fewer arrests to limit the spread of Covid-19 over the past year.
- Although Utah’s recent cash bail reform bill was repealed by the state Supreme Court, Salt Lake County District Attorney Sim Gill will continue to request pre-trial release without requiring bail for most minor infractions.
- In June, researchers from Missouri State University released a report detailing the pandemic’s effect on guilty pleas in criminal court. The team found that the risk of Covid-19 exposure likely pushed an increasing number of innocent people to plead guilty.
- On September 27th, Los Angeles County District Attorney George Gascon announced motions to dismiss an estimated 60,000 marijuana convictions. After identifying thousands of eligible cases in county court records, Gascon looks to expunge what he sees as the “racially disparate and overly punitive effects of the nation’s war on drugs”.
- Judges and prosecutors in New York continue to be criticized heavily for up-charging offenses in order to hold defendants on bail in order to gain "extra leverage in their cases to win plea deals.” The recent attention paid to the inhumane and unsafe conditions at Rikers Island have exasperated the issue.
Pretrial Detention/Cash Bail
Brennan Center Recommendation: Prosecutors should not request pretrial detention or imposition of cash bail for anyone charged with a non-violent offense.
- In February 2020, Alabama legislators passed HB 113, which prohibits cash bail for certain offenses, and sets a minimum bond amount of $300 per offense for misdemeanors and violations.
- The State’s Attorney’s Office for the Fourth Judicial Circuit of Florida ordered that defendants charged with nonviolent misdemeanor or felony offenses, whose cases are not resolved on first appearance and who do not pose a public safety or flight risk, should be released on their own recognizance, other non-monetary conditions of release, or minimal monetary bond.
- In New Orleans, judges of the Orleans Parish Criminal Court have ordered the release of certain low-level offenders – including those arrested for failure to appear on probation status and contempt of court – and pretrial defendants charged with misdemeanors or who have a bond in effect but tested positive for drug tests. District Attorney Leon Cannizzaro has said he largely agrees with the court’s decision.
- Since the Jacksonville State Attorney’s Office issued a memo in March calling for the release of people from incarceration, the number of people held in the Duval County jails has dropped by 21 percent. Much of the decline can be attributed to the fall in misdemeanants sentenced to serve jail time.
- On June 10, a Yolo County Superior Court Judge ignored the State Judicial Council’s order to issue zero bail for misdemeanor cases and some felonies, ordering $20,000 bail for a defendant with no prior violent criminal history.
- The State Judicial Council of California has voted to rescind the emergency rule that set bail at $0 for people accused of lower-level crimes. It is set to be removed on June 20.
- On June 22, the Supreme Judicial Court of Massachusetts supported local District Attorneys’ requests for flexibility on pretrial detention. This allows DA’s offices to prioritize the release of low-level offenders, and to reserve pretrial detention for violent offenses.
- Despite the fact that jails and prisons are often epicenters for Covid-19, Maryland State Attorney Marilyn Mosby’s office has continued to hold people without bond during the pandemic. Since March 20, the defendants in roughly a third of the cases charged in Maryland have been held without bail.
- On July 30th, 2020, in response to the Covid-19 pandemic, Jefferson County Alabama announced that new incarcerations will be limited to violent criminals who cannot make bond.
- According to the Center for Court Innovation, the rollbacks of New York bail reforms may produce a 16% increase in the individuals eligible for bail, meaning they would also be eligible for pretrial detention.
- In a wave of progressive elections, prosecutors across the country have promised to end cash bail practices in their jurisdictions, in response to concerns about both Covid-19 and legal system equity.
- On September 16th, 2020, Vermont’s Chittenden County State’s Attorney, Sarah George, directed her office to stop requesting bail for defendants facing low-level charges. Defending her decision, George stated that the “cash bail system in our country is predicated on the false assumption that people will not appear for court unless an arbitrary amount of cash is paid,” and that “research...has found this to be consistently false.”
- On October 1st, 2020, the Utah state legislature passed a reform bill to effectively eliminate cash bail in favor of a process to “release people accused of low-level crimes using the least restrictive means, like an ankle monitor or drug testing. Judges must consider the risk to public safety the defendant poses, as well as their likelihood of returning to court.” The bill was subsequently repealed by the state Supreme Court.
- In January, the newly elected Pima County attorney Laura Conover announced that her department would stop asking judges to set cash bail for non-violent suspects.
- On March 29th, 2021, California’s Supreme Court eliminated cash bail for those who can’t afford it, stating that "conditioning freedom solely on whether an arrestee can afford bail is unconstitutional."
- On September 19th, the Houston Chronicle reported that Harris County has more than 94,000 pending criminal cases. This pandemic-worsened backlog leaves people sitting in jail, waiting for their day in court or for their case to hopefully be dismissed. It is expected that it would take more than a year to get through the cases.
- On September 29th, Manhattan District Attorney Cyrus Vance Jr. suspended the practice of setting bail for low-level cases, instead prioritizing supervised release and non-cash conditions. In an email sent to trial division attorneys, the criteria for bail to be waived included a requirement for the charge to be non-violent, as well as for the person being charged to not have been convicted of violent or sex-related crimes in the last 10 years. Those who have failed to appear in a case are also not considered under the new guidelines.
- On September 27th, hundreds of people gathered outside of New York City courthouses to protest the sending of people awaiting trial to Riker's Islands, where at least 12 men have died this. John McFarland, an organizer with VOCAL-New York, proclaimed that the jail’s conditions are "internationally recognized forms of torture" and that sending any person Riker's right now is "a potential death sentence."
- On October 13, Santa Clara County in California announced that the number of people under alternative forms of pretrial supervision, such as electronic monitoring, home detention, and mandatory counseling, has quadrupled in the last 4 years. The increase is partially due to Covid-19 restrictions, along with a statewide shift away from cash bail.
Brennan Center Recommendation: Prosecutors should recommend release for people charged with nonviolent offenses who are at high risk of contracting Covid-19.
- San Francisco District Attorney Chesa Boudin ordered his assistant district attorneys to not oppose any motions for the release of pretrial detainees charged with misdemeanors or drug-related felonies who do not pose a threat to public safety.
- Baltimore's state’s attorney, Marilyn Mosby, sent a letter to Gov. Larry Hogan urging him to free all people over the age of 60 incarcerated in state prisons, anyone approved for parole, and all people scheduled to complete their sentences within the next year.
- Miami-Dade State Attorney Katherine Fernandez Rundle announced that she would begin to develop a process to release people charged with misdemeanors and non-violent offenses.
- Between March 2nd and May 4th, 2020, Wisconsin DOC released nearly 1,600 incarcerated people in response to the Covid-19 crisis.
- Salt Lake County District Attorney Sim Gill in Utah is releasing at least 90 nonviolent individuals incarcerated for technical violations, with further releases forthcoming to free 150-200 beds to fight COVID-19 by making space for possible quarantining.
- A coalition of at least 30 prosecuting attorneys, organized by Fair and Just Prosecution, called for their peers to release people deemed nonthreatening to society.
- Norfolk County’s Commonwealth’s Attorney has been selecting candidates for release from the local jail. Eligible candidates include those charged with nonviolent offenses, those with less than six months to serve on their sentences, those 65 and older, those with high medical risks, and those who could be supervised on GPS monitoring.
- On March 23, 2020, Colorado Department of Corrections ordered a suspension on arrests of people on parole for low level technical violations, such as failure to secure employment, inability to see their parole officer in person, and restitution requirements.
- As of April 9th, 2020, Illinois Governor J.B. Pritzker has commuted the sentences of 17 at-risk people incarcerated in state prisons. The governor also gave “state prison authorities more discretion in granting medical furloughs to inmates with health problems.” This has resulted in over 1,300 incarcerated folks to be released from prison.
- On April 13th , 2020, Oklahoma Governor Kevin Stitt announced plans to commute the sentences of 450 people incarcerated in state prisons.
- As of April 14th, 2020, Multnomah County, Oregon had decreased its adult prison population by 30 percent.
- On April 15th, 2020, Dallas County, Texas, officials announced the release of 1,000 incarcerated people in order to reduce the transmission of Covid-19.
- In Pittsburgh, Allegheny County District Attorney Stephen Zappala Jr.’s office committed to not oppose the release of nonviolent incarcerated people who are at high risk of contracting Covid-19 in the county jail. The DA is also working with public defenders to identify high-risk people for release.
- The District Attorney for Salt Lake City, Utah has identified hundreds of individuals in the Salt Lake County Jail who can be safely released, pending trial, for the duration of the Covid-19 pandemic.
- Philadelphia District Attorney Larry Krasner has recommended almost 1,200 candidates for release, according to the DA's office.
- Commonwealth Attorney Bryan Porter has been working with law enforcement allies to drop the Alexandria, Virginia jail's population by 44 percent to help fight the spread of Covid-19.
- Several Virginia Commonwealth's Attorneys released an open letter calling for the safe release of incarcerated youth who they say pose no safety risk to the community.
- In response to Covid-19. District Attorney Satana Deberry of Durham, North Carolina is recommending reduced sentences for people who are already incarcerated.
- In Florida, the Orange-Osceola State Attorney's office confirmed that the two counties are gradually releasing 300 individuals from local jails in response to Covid-19.
- Manhattan DA Cy Vance's office is working with government partners to reduce the Rikers island population in response to the pandemic. So far, the office has consented to the release of 315 individuals. As of April 23, the NYC jail population is the lowest it's been since 1946.
- The public defender's office in Cook County, Illinois says it has identified close to 3,000 candidates for pretrial release, but that the office of State's Attorney Kim Foxx has opposed release for 83 percent of them. An analysis by Sarah Staudt, a senior policy analyst at the Chicago Appleseed Fund for Justice, found that state’s attorneys have opposed release 70 to 80 percent of the time during the pandemic.
- By June, local jails across the country had largely followed three trajectories. The most common pattern, occurring in 527 counties studied by the Vera Institute, was a sharp decline in jail populations in March that remained low as the pandemic continued. In 270 other counties, the jail population quickly declined at the beginning of the pandemic, but soon began increasing again--reaching pre-pandemic levels by the summer. In 454 additional counties across the country, jail populations never decreased in response to the pandemic.
- Despite Attorney General Barr’s instructions to utilize compassionate release, home confinement, and other release levers to protect elderly and at-risk populations from Covid-19 exposure behind bars, federal prosecutors in Florida argued against the release of Atilano Dominguez (an 80-year-old man serving a life sentence for marijuana-related convictions) because COVID-19 is simply "one more way to perish in prison."
- According to data obtained by the Marshall Project and published in October, 10,940 federal prisoners applied for compassionate release in the first three months of the Covid-19 pandemic. Wardens approved only 156 of those petitions, denying or ignoring over 98 percent of petitions.
- On August 5th, 2020, Alaska courts extended an order from March earlier in the year that allowed all those held in jail for misdemeanors (with some exceptions) to be released on their own recognizance.
- On December 12, 2020, California’s Orange County, by order of the State Supreme Court, released half its incarcerated individuals in order to maintain social distancing guidelines and mitigate the spread of Covid-19 in the County’s prisons.
- On February 25, 2021, North Carolina Governor Roy Cooper announced plans to release 3,500 state prisoners using discretionary sentence credits. The announcement came as a result of an NAACP lawsuit against the state regarding prison conditions amidst the Covid-19 pandemic.
- On April 16, the Hawaii Supreme Court ruled to end an early release program put in place to curb the spread of Covid-19 in the state's jails and prisons. The court determined that the state no longer needs the program because of the rate of vaccination and health measures in place in correctional facilities.
- On May 1st, 2021, California issued “good time” credits to 76,000 people incarcerated in state prisons, allowing early release in an effort to further reduce the spread of Covid-19 among the state’s prison population.
- On September 7th, Honolulu Prosecuting Attorney Steve Alm filed a legal brief arguing against the release of people deemed low risk from carceral facilities, asserting that wide availability of the Covid-19 vaccine sufficiently addressed exposure risk behind bars.
- On September 29th, Fulton County District Attorney Fani Wells announced that she has prevented the release of 193 incarcerated people, who were scheduled to be freed in an attempt to reduce the pandemic-produced backlog of cases. This backlog comes with a 90-day rule allowing those being held to be released if they not indicted within a reasonable amount of time.
Brennan Center Recommendation: Prosecutors should work with defense attorneys and pretrial services to develop plans for safe pretrial supervision, consistent with social distancing obligations, and pretrial release for as many people charged with violent offenses as is feasible.
- On March 17, Brooklyn's District Attorney Eric Gonzalez announced that his office is asking defenders to alert the DA's office about clients in pretrial detention who are vulnerable to Covid-19. The DA's office will also ask defenders to advise the DA's office on who they should consider releasing outright.
- In March 2020, the Missouri legislature passed SB 995, which determined that those of low and moderate flight risk shall be “released on unsecured bond or own recognizance,” with those of "moderate flight risk" under abridged conditions as well. People deemed "high flight risks" are likely to continue to be denied pre-trial release altogether.
- On March 30th, 2020, the Indiana state legislature passed HB 1047, which “amends the duties of the justice reinvestment advisory council to include the review and evaluation of pretrial services and solutions to address jail overcrowding.”
- Miami-Dade’s State’s Attorney is working “to develop a process to release misdemeanor & nonviolent felons who are in custody but pose no threat to the public” by working with the Public Defender, Miami-Dade Court Chief Judges and the Miami-Dade Corrections Department.
- Responding to police union demands, Governor Cuomo rolled back pretrial jailing reforms on June 11 – reforms that had spared thousands of people from being exposed to COVID-19 through the correctional system.
- Kentucky released thousands of jail inmates awaiting trial, and Chief Justice John Minton Jr. has reported that the re-arrest rate for defendants released by pretrial services from April 15 to May 31, 2020 was the same as the re-arrest rate from April 15 to May 31, 2019, calling the program a tentative success.
- In December, climbing jail populations and increasing spread of Covid-19 re-invigorated activism pushing for release from New York jails, particularly for people in pretrial detention.
- In January, New Jersey prosecutors publicly opposed a plan that would release hundreds of people held in the state's jails pretrial, arguing that increased risks of Covid-19 exposure and inability to socially distance are not valid reasons to continue to release individuals from custody.
Brennan Center Recommendation: Prosecutors should work with defense attorneys and the courts to delay court appearances, if possible, and to set up a system for conducting telephonic status conferences rather than requiring in-person appearances.
- In King County, Washington, where civil and criminal trials have been delayed for at least a month, Superior Court Presiding Judge Jim Rogers announced that his court is creating a new video system that allows out-of-custody people to download an app to appear in court virtually for any emergency hearings, such as for domestic violence or sexual abuse protective orders.
- The Louisiana State Supreme Court has extended the delay for all civil and criminal trials in the state until at least May 4.
- The Indiana State Supreme Court has extended the suspension of jury trials in criminal and civil cases until after May 4.
- In Hawaii most criminal and civil court cases have been put on hold until at least April 30th “in the interest of the safety and health of the public and of court employees.”
- In Douglas County, Kansas all criminal and civil cases are postponed until further order of the cases assigned division judge.
- District Attorney Krasner's office proposed that Philadelphia city courts establish a Zoom court where hearings could be held virtually.
- To fight Covid-19 infections, Milwaukee County DA John Chisholm, with the local court's cooperation, has moved all court hearings online to Zoom.
- The New Mexico Supreme Court has extended the suspension of all new civil and criminal jury trials until May 29, with judges limiting in-person proceedings in emergencies and conducting non-jury civil and criminal proceedings through audio or video teleconferencing.
- In Wichita, Kansas, courthouses are experiencing a huge backlog of court cases, as jury trials have been put on hold during the pandemic. In response, the county is setting up processing stations outside of the courthouse starting June 15.
- Polk County, Florida has unveiled a suite of virtual courtrooms that allows criminal defendants to participate in hearings without being present at the courthouse, with portable fingerprint stations and temperature checkpoints instituted for judges and other courtroom personnel.
- The Michigan Supreme Court has created a Virtual Courtroom directory, which provides organized access to the virtual Zoom hearings throughout the state. More than 100,000 hours of hearings have been conducted remotely, and all are accessible to the public.
- The state of Florida is resuming in-person court proceedings during the month of July. Courts expect to be flooded with a backlog of cases, so those that involve people currently incarcerated will be prioritized. Social distancing will be enforced, but public health restrictions combined with budget cuts will slow courts down considerably.
- On June 12, 2020, the Wyoming Supreme Court extended their order to suspend court appearances until at least August 3rd, 2020 unless the case met certain emergency exception requirements.
- A San Mateo County, CA prosecutor appeared in court while COVID-19 positive. Although the prosecutor has been in quarantine since testing positive on June 16, the District Attorney failed to inform anyone in the courthouse who came into contact with the infected prosecutor, apart from his own staff, for five days.
- Shortly after in-person court appearances resumed in Allegheny County, PA, half a dozen positive COVID cases were confirmed among court system employees. The court administration says that the affected people have been quarantined, and plan to continue hearings in person.
- On June 29, the Texas Supreme Court issued an emergency order further delaying jury trials, this time until September 1. Trial judges may request jury trials, but a social distancing plan must be approved before such experimental trials can be held.
- Allegheny County resumed its in-person court proceedings at the end of June. As of July 7, one of their assistant district attorneys has contracted and is in critical condition with COVID-19. He believes he was exposed to the virus June 30, while at the courthouse. In response, President Judge Kim Clark has further restricted in-person hearings.
- In the Los Angeles County Courthouse, in-person hearings have continued during the pandemic, despite almost 500 positive coronavirus cases among staff and at least three deaths. The courthouse charges a fee for remote hearings, unless a defendant receives a special waiver. In January, it was revealed that several deputy district attorneys, along with a few public defenders, were given early access to Covid-19 vaccines despite their lack of eligibility under the county's administration plan.
- On April 7, the King County Superior Court's presiding judge, Jim Rogers, proposed that Washington county should temporarily expand its trial courts by employing retired judges, new public defenders, new prosecutors and victim advocates. The county has been conducting civil proceedings virtually and criminal trials in person but still has a backlog of over 7,000 cases.
- On April 11, Arkansas announced plans to resume state trials in May 2021. In order to follow public health guidelines, officials are planning to space people out in court rooms and considering alternative locations that may better allow for distancing.
- On May 3, in-person trials resumed in Dallas County, Texas after being on hold for over a year due to the pandemic. County officials report that the county retrofitted court rooms with plexiglass and microphones to enable trials to occur with Covid-19 precautions in place.
- On September 16th, Judge Richard Anderson ordered that in-person court appearances for those incarcerated by Shawnee County, Kansas, will be suspended until October, due to a Covid-19 outbreak in the Shawnee County Jail.
- On September 22nd, San Francisco Public Defender Mano Raju filed suit on behalf of roughly 400 people who have been denied their right to a speedy trial due to Covid-19 restrictions. The jurisdiction’s backlog of cases has left many people incarcerated longer than usual, which the suit claims violates their right to a speedy trial. State law requires a trial within 60 days.
- On October 6, 22nd Judicial District Chief Judge Doug Walker of Colorado ordered that all court appearances must be virtual due to a surge in Coivd-19 cases in Montezuma and Dolores Counties.
- As of October 11, the Eighth Judicial District Court in Las Vegas, Nevada reported a backlog of roughly 2,500 cases. The court has created criminal and civil conference programs where sitting judges, in their free time, try to settle cases to lower the number of cases awaiting trial. The court has also begun relying upon virtual appearances to improve efficiency.
Brennan Center Recommendation: Prosecutors should consider agreeing to waive filing deadlines for appeals and post-conviction motions to the extent possible.
The Chief Justice of the Supreme Court of North Carolina, Cheri Beasley, ordered an April 17 extension for all pleadings, motions, notices, and other documents and papers. In Mecklenburg County, North Carolina, District Attorney Spencer Merriweather III postponed all noncritical criminal court proceedings, presumably including appeals and post-conviction filing deadlines.
Georgia lifted its two-month suspension on filing deadlines on May 21, citing the fact that most of the filing deadlines that were suspended pertained to electronic filings, rather than court proceedings requiring in-person contact. The new orders do not revoke deadline extensions for filing new proceedings.
California tolled the statute of limitations for civil actions from April 6, until 90 days after Gov. Newsom declares the COVID-19 state of emergency is lifted. Many states have followed suit, excluding states like Illinois and Florida, whose courts issued emergency orders that did not extend statutes of limitations.
- Georgia’s state court has extended the state of judicial emergency for a fourth time, and the order has reinstated filing deadlines for civil and criminal cases, while also instructing judges to avoid summoning trial juries for such cases.
- The Supreme Judicial Court of Massachusetts has set new filing deadlines for appeal briefs delayed by the court’s tolling of deadlines in May, but has yet to set deadlines for briefs and appendices due on or after June 1, 2020.
- On May 27th, 2020, Kansas Supreme Court ordered the indefinite suspension of all statutes of limitations and statutory time standards or deadlines applying to the conduct or processing of judicial proceedings.” (The order was reversed on April 15th, 2021).
- Louisiana Supreme Court on June 5th, 2020 announced a filing extension through June 16th, 2020.
- As part of its June 12 order, the Wyoming Supreme Court also stipulated that “Orders of protection and temporary injunctions” that would expire between March 18th and May 31st were extended until August 3rd.
- On August 31st, 2020, Virginia Supreme Court extends eviction moratorium through September 7th, 2020.
- In response to the county's extensive case backlog, the Harris County commissioners approved a temporary staffing increase for the district attorney's office through July 31, 2021.
Adjourn Sentencing/Report Dates
Brennan Center Recommendation: Prosecutors should work with defense attorneys and the courts to adjourn all sentencings for individuals who are on pretrial release.
- The Cook County State’s Attorney Office, in collaboration with the Circuit Court of Cook County, postponed all trials and many hearings for a 30-day period beginning March 17. Bail hearings, arraignments, and preliminary hearings are the only named hearings to proceed during this period.
Brennan Center Recommendation: Prosecutors should work with defense attorneys, the courts, and their local departments of corrections to adjourn dates to report to prison.
- The Criminal District Courts of Travis County, Texas, ordered the Travis County Sheriff’s Office to notify all law enforcement officers to not bring any low-level offenders to the jail until May 8th.