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The spread of the novel coronavirus poses a particular risk to Maine people who are incarcerated, who have no choice but to live in close proximity at a time when public health officials have urged physical distancing.
As of Wednesday evening, none of Maine’s county jails or prisons have reported an outbreak. Criminal justice officials, however, are still taking precautions, which have forced the courts to reduce their operations, causing cascading disruptions.
“Preventing people from unnecessarily entering the criminal legal system in the first place, and ensuring that prisons and jails do not needlessly keep people incarcerated who are especially vulnerable to COVID-19, is the best way to keep our jails, our courts, and our communities safe,” said Alison Beyea, executive director of the American Civil Liberties Union of Maine.
Here are some of the ways coronavirus, known as COVID-19, has affected the criminal justice system as of Thursday morning.
State court system curtails operations
On Friday, the day after Maine reported its first case of COVID-19, the state court system announced it would significantly suspend operations until after May 1, including the postponement of trials and grand jury proceedings.
The order will delay the resolution of criminal and civil cases, which raises the greatest concern for those awaiting their day in court from behind bars, according to interviews with lawyers. Those cases will be prioritized for any criminal proceedings that do take place, according to the court system. Still, stalled operations could cause a backlog that will likely slow down cases even after regular court activities resume.
There is particular urgency to resolve cases that involve people in jail facing a lower-level charge. That’s because they could be subject to a jail sentence that wouldn’t exceed the period of time caused by the court’s delay, and could therefore serve more time behind bars as a result, said Jeff Silverstein, a Bangor defense attorney.
On Wednesday, the judicial branch advised that if a party to a case believes there are “urgent and compelling reasons” for the court to hold a hearing or trial on a case before May 1, they should immediately file a motion in writing explaining why. The court would try to address those pressing cases expeditiously.
The courthouse remains open, but on Wednesday, the Capital Judicial Center in Augusta closed temporarily for a deep cleaning after an assistant district attorney tested presumptive positive for COVID-19, according to a statement from the judicial branch and the district attorney’s office for Kennebec and Somerset counties. The person, who spent time in and around the courthouse on March 16 and 17, is now in self-quarantine, officials said.
Reducing county jail populations
Prosecutors are reviewing whether to release more people on bail to reduce jail populations in the event of an outbreak. Jailers will have an easier time isolating prisoners from one another if there are fewer of them, officials said.
The majority of county jail inmates in Maine have not been convicted and could thus theoretically be released on bail. That decision is up to a judge, who sets bail at the outset of a case based on the defendant’s flight risk and threat to public safety and with input from the district attorney’s office.
Some prosecutors are giving cases a second look since COVID-19 appeared in Maine, identifying people who could safely await trial in the community instead of behind bars.
“You’re always balancing [that decision] with public safety while making sure that the individual who is incarcerated is safe,” said Andrew Robinson, the district attorney for Androscoggin, Oxford and Franklin counties.
Last week, he instructed his staff to review their cases and, on Tuesday, submitted motions to amend the bail for two people held in jail in Auburn, he said.
Robinson, who is also the president of the Maine Prosecutors’ Association, encouraged his fellow district attorneys to consider the idea, following a Tuesday conference call with the district attorney in Cumberland County, Jonathan Sahrbeck, and representatives from the Maine Association of Criminal Defense Lawyers.
“I would much rather, if God forbid something happened, be responsible for 300 inmates instead of 386,” the number of inmates in the jail at the start of the week, said Cumberland County Sheriff Kevin Joyce, who was also on the call.
On the outside, Gov. Janet Mills has banned gatherings of more than 10 people.
The Maine court system has also increased the number of days that judges will set bail for newly arrested people. Prior to this week, people waited up to 48 hours to see a judge and learn if they would be released pending bail. On Monday, the court increased the number of these hearings, which will now be held five days a week, not three, to free people faster. Many jails, such as the Penobscot County Jail in Bangor, have switched to holding them via video conference.
Anecdotally, defense attorneys are noticing more people being released on bail since the court started holding arraignments every day this week, said Tina Nadeau, executive director of the Maine Association of Criminal Defense Lawyers.
“No one is disagreeing that having packed jails is a public health concern,” she said.
Meanwhile, Joyce, the sheriff at the epicenter of the Maine’s COVID-19 outbreak and home to the largest jail, has freed some inmates whose sentences were set to expire within the next 90 days and didn’t pose a threat to public safety.
The sheriff said he released 10 inmates on Tuesday who were part of a work-release program, meaning the jail had already determined them safe enough to spend time in the community. Those were also inmates who moved between jail and their work placements on the outside, and therefore were at greater risk of being exposed to the virus and spreading it behind bars, he said.
Sheriffs have the statutory power to furlough inmates under certain circumstances, and Joyce said he will continue to review which inmates are set to leave in the next 90 days and whether they should go early.
Arresting fewer people
Maine superior and district courts issued orders Monday to vacate all outstanding arrest warrants for people with unpaid fines and fees, which will curb the flow of people into jail on technical violations. The order does not eliminate the fines or fees, and it’s unclear if, or when, the court will issue new warrants.
Sheriffs have encouraged police departments to write more summonses instead of arresting people for minor offenses or for crimes that weren’t committed against another person.
Joyce, the sheriff, believes police are taking that to heart, after he noticed fewer people at the Cumberland County Jail on Monday compared with the previous Friday. Usually, the jail has more inmates after a weekend of arrests and no court, he said.
Limiting prisoners’ movement and contact with the outside world
Maine jails and prisons have temporarily stopped visitors and some volunteers from meeting with inmates and providing programs. The Maine Department of Corrections said it is looking to reduce or eliminate what it costs for prisoners to call people over the phone in light of the changes.
Lawyers are still allowed to visit their clients in jail, although likely through plated glass.
That said, “No one is thrilled right now to visit any of [their clients],” said Silverstein, the Bangor lawyer. “God knows what’s going on inside those jails. Hopefully nothing bad, but I think there’s going to be real reluctance to contact these folks.”
Some large jails have modified their booking process to screen or reduce the number of people placed under arrest from coming inside. Bail commissioners in Penobscot County, who set bail immediately after people are arrested and before they see a judge, are now setting bail at police departments instead of the Bangor-based jail, said District Attorney Marianne Lynch.
At the Cumberland County Jail in Portland, correctional staff are screening patients who show symptoms before they step foot inside, then triaging them to either an isolated cell on its own ventilation system or, in extreme cases, the hospital, said Joyce, the sheriff.
Inside their walls, jails will keep infection at bay by increasing their existing protocols to manage the spread of contagion, such as ramping up cleaning efforts inside the facility and limiting the movement of inmates, said Penobscot County Sheriff Troy Morton, who is also the president of the Maine Sheriffs’ Association.
The Maine Department of Corrections said it is taking similar measures in the state prisons, as well as making sure prisoners understand how to identify symptoms of the disease if they feel sick.