COVID-19 in Prisons: Recipe for Disaster

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ALFONSO GAMBONE, ESQ. manages a law firm that provides criminal defense across Southeastern Pennsylvania & South Jersey.

You, like many in Philadelphia, Camden and surrounding suburban communities in Pennsylvania and New Jersey, may have read or heard of stories about jails and prisons releasing inmates due to the COVID-19.

There is strong constitutional ground for this release under the 8th Amendment to the United States Constitution along with Article 1, Section 13 of the Pennsylvania Constitution and Article 1, Paragraph 12 of the New Jersey Constitution.

The COVID-19 pandemic continues to shut down businesses in Pennsylvania, New Jersey, and across the country. In addition, State governors have ordered people to “shelter in place” to decrease the chance of contamination and spreading this virus to others. While it appears that, in many cases, this virus does not result in death; it can severely incapacitate someone and require hospitalization.

The shelter-in-place order and the business shutdown are being done to prevent the overrun of our hospital system with literally millions of people seeking treatment all at once. All life-sustaining businesses remain open; this includes grocery stores, gas stations, farms, and transit systems. Currently, over 39,000 people have been diagnosed with COVID-19 and there are approximately 466 confirmed deaths.

The virus spreads through respiratory droplets or by touching a surface or object that has the virus on it. Infected persons who are asymptomatic and not even know they are infected can spread the disease even through indirect contact with others. Officials and medical experts have urged “social distancing” which is the isolating of oneself from other people as much as possible. This call for social distancing is virtually impossible in county, state, and federal prisons. In Philadelphia alone there are approximately 4,432 people currently in the county jail system.

Medical experts have classified jail facilities as “ticking time bombs” for disease as they are, by nature, crowded with people, often suffering from diseases that weaken their immune system.

The risk posed by COVID-19 in jails and prisons is significantly higher than in the community in the risk of transmission, exposure, and harm to individuals who become infected. This is based on close proximity of individuals in those facilities, reduced ability to practise social distancing; the lack of basic medical and hygiene supplies; faulty ventilation systems; a difficulty quarantining the ill.

What a Criminal-Defense Lawyer Can Do to Help

If you or a loved one is currently being held in a county-jail facility on a probation detainer or simply on high bail, your criminal-defense lawyer should consider filing a motion to lift that detainer or reduce that bail based on Article 1, Section 13 of the Pennsylvania Constitution and the 8th Amendment of the US Constitution (New Jersey, Article 1, Paragraph 12) which prohibits cruel punishment against someone while held in custody. This is a very strong constitutional protection which could allow you or a loved one to be released immediately.

It’s important to keep in mind that the COVID-19 epidemic is delaying all court proceedings and will likely delay your criminal matter. You could literally spend additional months in custody waiting for a trial date or a hearing on your violation.

Under the 8th Amendment, incarcerated persons rights are violated if he/she is “incarcerated under conditions posing a substantial risk of serious harm” and that “harm is caused with a deliberate indifference to an inmate’s health or safety”. These are fundamental rights under the State and U.S. Constitutions which would allow the court to hear an emergency petition focusing on this issue.

While courts are closed around the country, most courts, including those in Pennsylvania and New Jersey, continue to hear emergency petitions for bail, lifting of detainers, and for protection from abuse (PFA) and temporary restraining orders (TRO).

If you have read my previous articles on bail, you will understand that it is not meant to punish a person but simply to ensure a person’s appearance at trial. While probation detainers are different from bail arguments, court will also consider a person’s contacts with the community, propensity toward violence, and reasons for the violation. If the violation involves a new arrest for a violent crime, especially a felony crime, the court is less likely to release someone but there are always arguments that your attorney can make which a court will find persuasive.

Gambone Law maintains a practice in criminal defense across Southeastern Pennsylvania and South Jersey.

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