The judge was conflicted.
The woman appearing before him seeking bond on a felony larceny charge had a long history of petty crimes and a terrible record of following court orders: six failure to appears, four probation violations and two contempt of court citations.
But she also suffers from a disease that compromised her immune system, according to her lawyers, who set up the hearing in Richmond General District Court last week in hopes of getting her out of jail, where experts worry the spread of COVID-19 will be especially difficult to contain.
“This is not the type of case I would release someone on bond for at all,” Judge Tracy Thorne-Begland told the defendant, Devin “Yaya” Thompson, who police accuse of shoplifting from Walmart.
Then he did it anyway, noting the special threat her pre-existing condition poses and ordering that she instead be held on house arrest until her trial.
Gov. Ralph Northam has encouraged judges, prosecutors and defense attorneys to work together to clear low-risk offenders out of crowded local jails, where people are held in close-quarters, sanitation is questionable, pre-existing health conditions are common and the quality of medical care can be suspect even when there isn’t a looming global pandemic.
But how seriously individual local officials are taking that advice and who they consider low risk has varied wildly across the state — and sometimes within the same courthouse.
Some jailers and prosecutors are moving fast to release non-violent offenders, often to house arrest — framing the steps as essential for the safety of inmates and staff. And in some localities, including Richmond, nearly every case is a fight between defense attorneys and prosecutors, with the outcome varying dramatically depending on inmates’ circumstances and the judge overseeing the hearing.
Some judges wonder if jail is safer
Thorne-Begland acknowledged concern about the potential impact of an outbreak in jail as he heard cases. Upstairs, Circuit Court Judge Phillip Hairston said he wasn’t convinced the virus represents a threat to prisoners, instead positing that they might actually be safer behind bars, according to the Richmond Public Defenders Office, which has been pushing discussions about broader release in the city.
“He thinks that since there’s been no positive tests in the city jail, it’s a very safe place to be,” said Ashley Shapiro, who is representing Douglas Antoine Johnson Jr., a 20-year-old she argued was a prime candidate for release because his record is non-violent. He was convicted of felony theft when he was a minor and, in October, he was charged with illegal possession of a firearm and has been held without bond since.
Judges in Virginia rarely speak to the press and Hairston’s office didn’t respond to an email seeking comment.
Public defenders around the state have been frantically pushing to get their clients out of jail while they await trials that, in many cases, are being delayed amid a sweeping judicial emergency declared by the Supreme Court of Virginia.
They’ve met varying degrees of success. On a recent weekday in Richmond, the office, which represents low-income defendants who can’t otherwise afford attorneys, argued 16 bond motions. Prosecutors objected to all but one and judges granted release in half the cases.
“As the pandemic has ramped up, I feel like I’m screaming from the rooftops, ‘We need to talk about this,’” said Tracy Paner, who heads the public defender office in Richmond. “And I feel like many of the players in the system are acting like it’s business as usual.”
Richmond Commonwealth’s Attorney Colette McEachin took issue with the suggestion that her office is opposing most bond requests, but acknowledged they weren’t necessarily agreeing to them either. “I don’t know about prosecutors opposing, so much as letting the judges know about their concerns about public safety.”
Like Hairston, she suggested she wasn’t convinced the city jail was necessarily an unsafe place to be.
“I think that it is a fact that as of now the jail does not have anybody who is diagnosed with COVID-19 and that is not the case with the city of Richmond and the greater metro area,” she said. “It’s a secure, enclosed environment with its own medical facility.”
Inmates, jailers and medical professionals don’t necessarily see it that way. Nationally, the chief physician for Rikers Island in New York City, has been outspoken about the threat the virus poses. “We cannot socially distance dozens of elderly men living in a dorm, sharing a bathroom,” he tweeted. “Think of a cruise ship recklessly boarding more passengers each day.”
‘This is an inherently high-risk population’
Health care in jails and prison is already notoriously bad and lawsuits alleging poor medical care – ranging from dozens of inmate deaths to an improperly treated broken finger –are common in Virginia.
At the state level, officials have blamed bad health outcomes on the difficulty of providing treatment in secure environments and the fact that inmates tend to be less healthy than the larger population. Within the prison system, they consider any patient over 55 geriatric. Sheriffs have said the same holds true at the local level.
“This is an inherently high-risk population, especially given our number of sick, elderly and immunocompromised individuals. For them, a coronavirus diagnosis could be a death sentence,” Virginia Beach Sheriff Ken Stolle said in a statement last week.
He announced he had identified 60 inmates with less than three months left to serve they were seeking to transition to home monitoring. He said the releases wouldn’t compromise public safety: “Now is the time for us as a society to decide who we are mad at and who we are afraid of and only incarcerate those we’re afraid of.”
Other localities are following suit: The superintendent of the Albermale-Charlottesville Regional Jail told The Daily Progress the facility’s inmate count had dropped to its lowest levels in almost 20 years and was on track to release 50 people to home incarceration. The Roanoke City Jail reduced its population by 10 percent with the release of 56 inmates, according to The Roanoke Times.
Elsewhere, including Richmond, sheriffs put the number of inmates released as a precautionary measure at zero. Richmond Sheriff Antionette Irving’s office said the jail census continues to hover at about 750 — “same as typical levels.”
Asked if the office was concerned, she said in a statement only that release decisions are left to the courts, the commonwealth’s attorneys office and defense attorneys.
‘They came around with a can of Lysol’
Irving and others have said they’re focused on preventing the virus from entering the jail by cancelling visitations, screening inmates and regular, thorough cleaning.
That’s the same basic approach the Virginia Department of Corrections has taken with state prisons, which have also banned transfers from local and regional jails and begun manufacturing non-medical grade masks. So far, there’s been no movement to speed release of inmates nearing the end of their sentences or eligible for geriatric release — two recommendations made by the Legal Aid Justice Center.
Inmates, meanwhile, say they haven’t been impressed by the new cleaning measures officials have been touting.
“They came around with a can of Lysol, but that’s it,” Johnson, whose bond request was denied last week, said by phone from the Richmond jail.
“We read the newspapers — they recommended nonviolent people be let out on house arrests and stuff but the prosecutors and judges are really blocking it.”