On May 27, a group of national organizations led by the Association of Prosecuting Attorneys and the Center for HIV Law and Policy released a document with a set of recommendations on how criminal justice professionals can incorporate public health principles into their response to COVID-19 and maintain these approaches going forward to improve community health and safety.
To find out more about this “pathways” document and the recommendations, correspondent Terri Wilder spoke with Catherine Hanssens, the founding executive director of the Center for HIV Law and Policy, a national legal resource and support hub that challenges barriers to the sexual health and rights of people on the basis of stigmatized health status or identity. CHLP does work through legal advocacy, high-impact policy initiatives, and creation of cross-issue partnerships, networks, and resources that amplify the power of communities to mobilize for change that is rooted in racial, gender, and economic justice. CHLP coordinates the Positive Justice Project, the first national network to challenge criminalization of HIV and other diseases.
Hanssens has been working on HIV legal and policy issues since 1984 through litigation, legislative lawyering, community organizing, and policy advocacy. She created and managed one of the first medical-legal partnerships in the country with on-site HIV legal services in several Philadelphia hospitals and clinics, and she successfully litigated the first cases in voluntary HIV testing, a class-action challenge to segregation and mistreatment of prisoners with HIV in the New Jersey state prison system, and the only federal appeals court case recognizing the right of incarcerated women to funded elective abortions.
Terri Wilder: Thanks for speaking with me, Catherine.
Catherine Hanssens: My pleasure.
TW: As we all know, COVID-19 is having a significant impact on the world. And it’s impacting aspects of the criminal justice system. Can you talk about how COVID-19 has impacted the criminal justice system?
CH: Yes. Actually, I think it’s affecting people who either live in or work in correctional facilities in the ways that you might expect an airborne disease to affect people who are confined in a closed system. Jails and prisons have shared ventilation systems and inadequate health care programs, pretty much across the board. And decades of the war on drugs, relying on incarceration, and viewing the criminal law—rather than public health—as a solution to most of our problems have produced decades of overcrowding in these facilities, where most prisons and jails house more inmates than they were built to hold.
If you think about that in the context of social distancing and using preventive measures to limit your exposure to other people’s coughs and sneezes and whatever, you can see where the problem—you know, what the possible outcome would be. Single celling is relatively rare, especially in jails and lockups, where there typically are inadequate screening processes for any kind of communicable disease. Corrections officers go back and forth to their families and communities. So, I don’t know. You can use the analogy of a cruise ship, an oversize petri dish. But you have people that are literally captive in an environment where they have no reasonable way to distance from other people in the facilities. And, as a result, we’re seeing huge numbers of infections and deaths in correction facilities across the country.
TW: Across the United States, criminal justice systems are using different strategies to limit the spread of the pandemic, including releasing some people who were incarcerated and limiting custodial arrest. Can you talk about, what are the circumstances in which people are being released?
CH: Well, thousands of people have been released from jails and prisons across the country. And there are several different sets of criteria that seem to be common to most of these releases. For example, in early April, California set a statewide emergency bail schedule that reduced bail to zero for pretty much anybody with a misdemeanor or low-level felony offense. So, the incarceration of people who can’t make bail, which is far more common than many people may realize, was at least ended there. In some counties—like in Orange County, their jail population was dropped by almost 45%, as a result of just that kind of thing.
In Florida, in Miami-Dade County, in their jails, the population reportedly dropped about 20% as a result of efforts by the lawyers and judges. So, some of this is happening by—there will be an order at the executive level or at a county level. Some of this is happening through applications from defense attorneys or negotiations between defendants’ lawyers and prosecutors and judges. Some of them are happening when the courts just take the lead and start ordering special hearings to identify people who can be released. In Ohio, for example, one county released 900 people and reduced their jail population by 30%.
So there are a variety of ways that this is happening. And some of the most encouraging are the ones where it is courts and prosecutors that are actually taking the lead on that kind of thing.
Another approach that a lot of jurisdictions are taking is to limit unnecessary check-ins and visits for people who are on parole, probation, or even on some registries. The latter is not sex-offender registries—folks tend to get excluded from counts on COVID-19, and they tend to be excluded from the relaxing of reporting requirements. But some of that is happening.
For example, in New York State, anybody that is on parole has had their visits, their actual visits, suspended. And that’s replaced with a telephone call or a text message, that sort of a thing.
TW: I feel like I have read about some activism around trying to get folks who are older adults released. Or folks who have specific chronic conditions or disabilities.
CH: Yes, that’s absolutely right. That’s a big chunk of it. So, there’s a combination of factors. Some of it is, across the board, anybody with these level of offenses—out they go. And then there is also anybody with conditions that place them at unusual risk—it could be age; it could be, in some jurisdictions, HIV has been considered—the range of comorbidities that place you at increased risk.
Now, let me back up for a second. That consideration also includes whether or not the person is a danger in the community. So, somebody may be living with HIV but be held on serial murder charges. I mean, I’m talking about something that’s relatively unlikely. But that is also a factor.
In fact, in some places, the standard really is, anyone with a misdemeanor or a low-level offense that does not pose a risk to the community, in terms of a history of violent crime, is not only going to be released; they’re not going to be admitted in the first place. So, it is a combination of medical factors for people who do not automatically fit into that low-level misdemeanor or being held because of a bail issue.
TW: Got it. Can you talk a little bit about how the system is limiting custodial arrest?
CH: Yeah. That is really encouraging. And, partly, one of the reasons that’s so encouraging is because it really does require the active decision-making to do that on the part of law enforcement officials. Some of that does happen at the executive level, but a lot of that is happening because the law enforcement authorities are working closely with the office of public defenders in different states to stop certain kinds of arrests.
For example, in Delaware, arrests for felony and misdemeanor crimes dropped by almost 45% after the governor issued a stay-at-home order. So, law enforcement officials in Delaware responded by changes in policing, which they took, as they said, for the safety of officers and to prevent the spread of COVID-19. So, whatever reason they are throwing rocks in the right direction matters less than that they have dramatically reduced the number of new arrests. I mean, a 45% reduction is pretty remarkable.
And district attorneys—and this is really interesting, because there are also district attorneys who happen to be progressive district attorneys. But in Brooklyn and in Philadelphia, back in mid-March, the DAs in those cities decided to reduce jail admissions by releasing people charged with a nonviolent offense and not actively prosecuting any low-level or nonviolent offenses.
So, possession of marijuana? People are not going to get prosecuted for that now, in those particular cities.
I think—trying to think of some other examples. In Oregon—and I think this is a criterium that is also applied when we’re considering whether or not to release people that may have comorbidities. In Lincoln County, Oregon, they have only been admitting people who were arrested for what they call serious crimes, or people who pose an extreme risk to the community.
Everybody else is getting a citation and released after they’re booked. I think what’s important about this is that these are all approaches to reduction of overcrowding, which is central to controlling any kind of infectious disease, whether it’s COVID-19, or the flu, or the next thing that comes down the pike. It’s that it is possible to make dramatic reductions in current jail and prison populations, and in new arrests and incarceration, without jeopardizing public safety.
TW: My understanding is that the responses to releasing people and limiting custodial arrest—while many areas are doing the right thing, it’s been inconsistent and slow in many jurisdictions. And I’m wondering if you can talk about the reasons behind this inconsistency, and what are the consequences of this?
CH: I think it’s a reflection of the leadership and competence of those in decision-making positions, frankly, and the extent to which political considerations factor into their decision-making. No one is going to run for sure [with] the slogan, “I released 300 people from the county lockup.” And opponents will make hay out of just one poor outcome. That’s one of the things that is really fundamentally unfair, and I think what I hear people in law enforcement say is worrisome, because—and we talk about this in the pathways document—we, in public health and health and other contexts, people understand the notion of risk reduction, that it is completely impossible to absolutely remove all risk.
And yet, when law enforcement officials are asked to take action to reduce risk in the systems for which they’re responsible, their concern—and it’s based on history and the media—is that there will be one horror story that will discredit the entire effort, that the fact that they have saved lives and that the vast majority of people released are not going to reoffend or engage in dangerous behavior is completely lost. Because in the criminal justice system, it has to be 100% success, or it’s not success. That’s the kind of political challenge that those folks have to deal with.
So, it takes vision, leadership, and an overriding concern for human life and the health of all communities, over political concerns and fears. And obviously not everybody that is a sheriff or a governor or a district attorney or an attorney general has those qualities.
TW: In the newly released pathway document, there are five key recommendations for the criminal justice system’s response to COVID-19. Can you take me through those five recommendations?
CH: The key recommendations are based on actions that have been taken in different criminal justice systems successfully, without undermining health or public safety.
One is releasing people who are incarcerated, based on clear public health recommendations and release criteria. That is a critical intervention to limit the spread of disease. So there has to be a plan for releasing people based on a combination of public health and public safety criteria.
There has to be a limiting of new admissions to closed correctional facilities. That is an equally critical component of reducing disease transmission for the protection of all communities—whether we’re talking about people who are confined in correctional facilities, or the people who work in them.
Violations of COVID-19–related directives and orders should be addressed with a public health approach, rather than with criminalization and law enforcement surveillance. It makes absolutely no sense, when there is a directive that people should stay at home to protect themselves and other members of the community, for police to approach them and arrest them and put them in a situation where they and others are placed at the same risks that these directives are intended to prevent.
A fourth one is that innovations that promote integration of public health priorities into the justice system already exist and may help local jurisdictions in their responses, including specialty courts, evidence-based models of correctional health care, and dedicated reentry services. So, there are a variety of both tried-and-true and novel creative programs around the country already in existence that could be looked at, tweaked, expanded, improved, and implemented right now. And we should take a look at what successful jail and prison population reduction programs already exist.
And then, finally, connections among public health organizations, researchers, and criminal justice stakeholders are necessary to manage public health crises in custodial settings and should endure beyond the COVID-19 pandemic. I think, on that one, it’s important to say that [we] can lay the blame on law enforcement officials for mangling the provision of health care in jails and prisons, and for being too slow to treat and identify people at risk of COVID and a variety of other diseases. That’s absolutely true. That’s absolutely currently happening across the country.
However, where are our state and local health departments in this? Where are they in seeing community as extending inside prison walls and into the communities that are affected by the people that live or work in those facilities? Where are they in terms of clarifying what needs to be done and taking a position on public health and community health that includes people who are incarcerated or in civil commitment facilities?
There may be a problem with mission drift in law enforcement, where police and legislators start to see their law enforcement duties as including the prevention of disease by proposing all sorts of ridiculous feudal measures to now criminalize aspects of behavior related to COVID-19. But we need public health officials to publicly stand up when that kind of thing is introduced, and say, “No. That is our lane. That is our mission. We will take care of that.” And there really isn’t enough of that.
TW: In the press release announcing the pathways document, you’re quoted in it as saying, “This set of proposed pathways shows that better partnerships between law enforcement and health policy professionals, regardless of political perspective, not only are possible; they are essential to a more evidence-based and effective management of legitimate public health and safety priorities.”
What kind of partnership between law enforcement and health professionals would you envision really needs to be in place—not just for COVID-19, but going forward—to achieve a more evidence-based and effective management of public health and safety priorities?
CH: I think what we need is for members of those professions and areas of responsibility to intentionally engage in a productive way to understand what law enforcement does on the part of public health officials, and for law enforcement to understand what public health does; and to understand what is appropriate, and not appropriate, collaborations.
For example, in the world of HIV criminalization, there are some people in public health who have also had a little bit of a problem with mission drift and have engaged in—you know, sort of self-deputize themselves in law enforcement when they believe that people living with HIV were engaging in behavior that might expose others to the disease. So, there are inconsistencies, not only in law enforcement, but in public health, in terms of understanding your mission and staying in your lane.
I do think that this document is an excellent example of how that kind of collaboration can work, and the benefits of that. We have the National Alliance of State and Territorial AIDS Directors supporting a set of priorities that is also supported by the Association of Prosecuting Attorneys, and the National Legal Aid and Defender Association [NLADA], and the Fenway Institute.
The conversations that happened in the production of this document are conversations that we are certain are going to continue. We’re going to make sure that they do.
That said, I think it has to be noted that this is a time when anyone with a heart and a conscience is sick and ashamed of the fact that large segments of law enforcement believe it’s OK to murder Black men and women with impunity, and peaceful demonstrations and calls for change appear to have accomplished nothing. The demonstrations are a reflection of that. The things that we’re seeing going on now reflect people’s complete frustration and desperation at the fact that the same thing happens over and over again. So, I understand that when I talk about collaborating with law enforcement, that there may be a reluctance to do that.
However, there are many ways that we can engage with people who have control over the kinds of policies that affect the way the criminal legal system operates. This is one of them. And it is possible to achieve change, and to change minds and policies, by having the patience to engage in extended conversations with people in multiple disciplines, and to listen to what their concerns are—so that you can at least figure out a way to recognize that those are concerns, and then address them, one way or the other.
TW: The pathways document that was created is intended to support law enforcement professionals in managing pandemics such as COVID-19. What’s the distribution plan for the document?
CH: Well, one of the benefits of our partnership with a range of criminal justice organizations is that all of these folks reach, collectively, a very wide swath of prosecutors and defense attorneys across the country. So, all of these organizations, from the Association of Prosecuting Attorneys, NLADA, and so on, will be posting these on their website. The lead organizations and the lead authoring organizations, including APA and NLADA, will be organizing webinars and continuing legal education sessions for attorneys who are part of their networks, both defense attorneys and prosecutors. So, we expect we’re going to reach a lot of people who are in a position to consider and promote the kind of changes that the document suggests.
We also hope that we will be doing similar kinds of outreach and webinars and discussion sessions with our health partners later in the year.
Read the Proposed Public Health and Public Safety Pathways for Criminal Justice System Responses to COVID-19 report at the Center for HIV Law and Policy website, here.