On this last episode, we look back on 23 years of joyous, difficult and always informative conversation.
Mayor Bowser and Governor Hogan have urged residents to stay home during the pandemic and put much of society on pause, including the justice system. Across the region, courthouses are either operating on an emergency schedule, or have closed for the foreseeable future. Many court cases have been left on the table, as lawyers and their clients are left wondering what happens next.
In correctional facilities, incarcerated people are at risk of contracting the highly contagious virus. After D.C. Jail confirmed that a man tested positive for the coronavirus, they put over thirty people in quarantine last week. And the corrections officers union unanimously voted “no confidence” in the jail’s leaders’ ability to handle the situation.
How have lawyers, judges and other legal professionals adapted during the pandemic? What happens to cases in limbo? And how have correctional facilities worked to protect the incarcerated and corrections officers?
Produced by Richard Cunningham
- Martin Austermuhle Politics reporter, WAMU; @maustermuhle
- Douglas Milman Divorce Lawyer, Wexell Milman Virginia Family Law Firm
- Premal Dharia Founder and director of Defender Impact Initiative
KOJO NNAMDIWelcome back. The coronavirus pandemic has put all industries on hold. There are stay-at-home orders in Maryland and Virginia and the District. For the foreseeable future, our producers are even working from home, at this point. Our justice system has not been exempt from the pandemic. Courtrooms across the region have closed or operate on an emergency schedule. Very few lawyers and their clients know when their cases will go to court. Meanwhile, at the D.C. Jail, after one man tested positive for the coronavirus, they put over 30 people in quarantine. Soon after, the union representing the guards voted no confidence in the jail's ability to stop the virus.
KOJO NNAMDISo, how have legal professionals handled the pandemic, and what are correctional facilities doing to protect their workers and the incarcerated? Joining us is Douglas Milman, a divorce lawyer at Wexell Milman Virginia Family Law Firm. Douglas Milman, thank you for joining us.
DOUGLAS MILMANGood afternoon, Kojo.
NNAMDIHow has the COVID-19 pandemic affected your daily operations?
MILMANWell, like many of your prior panelists have expressed, it's been extraordinary. That's really the way to characterize it. The first thing we noticed was that, in early March, around the 11th, 12th, local courts started issuing emergency orders pertaining to their operations. And the orders included what cases would be heard and what would not be heard, and how cases would be -- as we say in the profession -- continued to be heard in the future.
MILMANAnd the consensus, including advice from the Supreme Court of Virginia, is that only emergency matters are being heard and decided at this time. And that really means true judicial or legal emergencies, when someone is in imminent danger of harm, really abuse cases on the civil side and things like that. So, my practice and my colleagues' practices have changed in that we're not in court from day to day. We're not trying custody cases. We're not trying divorce cases. And those cases are going to have to be resolved months and months down the road.
NNAMDIJoining us now is WAMU reporter Martin Austermuhle. Martin, thank you for joining us.
MARTIN AUSTERMUHLEThanks for having me.
NNAMDIMartin have any jurisdictions in the region provided any plans on how the courts are to operate at this time?
AUSTERMUHLEYeah, so all of them jumped to it relatively quickly, within a couple days of the pandemic becoming, I guess, a local pandemic. Court systems in Virginia and Maryland, both on the federal and local side, started laying out rules and guidance on what was going to happen and what was not longer going to happen. Like, I think, in both Maryland and Virginia, there was a very quick suspension of jury trials. There was kind of just an assumption that there should be fewer people coming through the courthouse, generally, so limits on who could enter the courthouse.
AUSTERMUHLED.C. kind of stayed -- done things a little bit more slowly. Down at Superior Court, they started with we're going to limit access to the courthouse. We're going to clean surfaces more frequently. But they didn't suspend operations, really. It's only after -- they were about a week or two behind other jurisdictions when they finally realized that, number one, they had a court marshal that had tested positive, so they had to take other steps.
AUSTERMUHLESo, they started shutting down courtrooms. They started limiting the amount of trials that they were having. They basically stopped serving warrants for relatively insignificant offenses. They've allowed attorneys to request for their clients to be released from jail, if they serve certain conditions. So, yeah, I mean, now, across the board, everybody's kind of on the same page. It just took a little bit of time to get there.
NNAMDIDouglas Milman, are any courtrooms at all still holding trials?
MILMANAll local courtrooms are holding trials, but, again, it's really only for a limited subset of emergency matters. I just looked at my court calendar this morning, the next four trials I have in the next four weeks, postponed. So, my clients aren't going to have their cases resolved. I was in court this past Friday, and it was an emergency matter, an abuse matter, and it was interesting. The whole atmosphere was very different, very somber, empty hallways. And the courtroom isn't a happy place to begin with, but I just describe it as different, eerie, under these new circumstances.
NNAMDIOkay. Here is Andy, in Fairfax, Virginia. Andy, you're on the air. Go ahead, please.
ANDYHi, good afternoon. I'm a public defender in Fairfax County. I'm also on the Board of Justice for Virginia. We advocate for criminal justice reform measures in Virginia. Here's my question. Rikers Islands and county jails are seeing COVID-19 infection rates 100 times worse than the United States, and 10 times worse than even New York City proper.
ANDYUnfortunately, we are seeing very slow process in emptying our jails in northern Virginia. Too many people are being held without bond or being required to pay a cash bond that they can't afford. These are disproportionately poor people, people of color, and people with mental health or substance use disorders. Is there any reason to think that jails in Virginia, D.C. and Maryland aren't on a similar path as jails in New York City and Chicago?
NNAMDIJoining us now -- and thank you very much for raising that issue, Andy, because joining us now is Premal Dharia, founder and director of Defender Impact Initiative. Premal Dharia, thank you for joining us.
PREMAL DHARIASure. Thanks for having me.
NNAMDIYou just heard Andy's question. How are the local correctional facilities adjusting to the coronavirus pandemic?
DHARIAYes. Andy, thank you for asking that question. It's a really important one. I think what the other panelists have described in terms of court closures reflects the general understanding that the need for social distancing and self-isolation is really important. And one area that is gravely in need of urgent action is for the people who are incarcerated in our jails and prisons to be able to do the same.
DHARIAPublic health experts around the country have been calling for a reduction in the number of people who are incarcerated, precisely because of what you are getting at, which is that jails and prisons and carceral facilities themselves are going to be epicenters of this pandemic. They're going to be where the infection spreads, the most quickly and where the most urgent action is needed.
DHARIAAnd here, in the D.C. area, we are seeing very slow action. We are lagging behind other jurisdictions around the country in addressing this crisis. And I think it's very likely that if we don't act very soon, with the urgency that this situation calls for, that we are going to be on our way to a situation similar to Rikers Island and other places around the country.
NNAMDIMartin Austermuhle, what about those awaiting sentences or those awaiting release?
AUSTERMUHLEWell, that's one example that is in the D.C. Jail. The D.C. Jail is not a prison, so no one is there serving long sentences. They're there either because they're being held pending a trial or they're serving a short sentence, usually less than two years. And a lot of advocates have pointed out that the D.C. authorities have been very slow to move on getting people out of the jail, especially folks who may be there just waiting trial. And, again, trials are being delayed, so it could be awhile. But also folks who are there for misdemeanor offenses, maybe they have like a year sentence or something and they have four months left on it.
AUSTERMUHLEA lot of defense attorneys out there have said that those sorts of folks should be let out. And, actually, the D.C. Council, two weeks ago, gave the city additional authority to give people additional good time credit. So, essentially, if you have four months left on your sentence and you should -- you've been a good inmate and you've had good behavior, they should let you out more quickly. Now, there's no proof yet. We haven't gotten examples of that happening yet.
AUSTERMUHLEAnd, again, there are other places in the region that have moved a little more aggressively on this. I know Prince George's County last week defense attorneys and prosecutors teamed up, actually, let out about 62 people out of the county facility under the recognition that having these people imprisoned, incarcerated for either relatively minor offenses or because they're awaiting trial right now is not a good idea.
NNAMDIThat was a response to the office of the public defender in Maryland calling for the early release of large numbers of inmates who pose little or no safety risk to the community, in an effort to minimize the risk of an outbreak within the Maryland prison system. Martin, you say that was done in Prince George's county and where else?
AUSTERMUHLEWell, that was done in Prince George's County. That's the example I have right now, the most recent one. I think, obviously, again, there's many other counties in the state that are going to be looking at this. Now, how quickly they act, I'm sure it just depends on local officials.
NNAMDIDouglas Milman, how are issues like child custody and visitation being handled? Are children still moving from home to home?
MILMANIt's a very tricky issue. My experience is and my advice to clients is the court orders need to be followed. So, if the court orders say that the child transitions from mom to dad on Friday, that's really what has to be done, absent, really, extenuating extraordinary circumstances. And that’s the advice that, for example, the American Bar Association has given, the American Association of Matrimonial Lawyers, is that court orders and custody agreements aren't abrogated or set aside during these times.
MILMANOf course, clients are concerned. I had one client reach out to me and say, I don't want to turn my child over to the other parent, because I don't think the other parent is going to give the child back. My advice, consistently, is to be proactive, child-centered, and act in the child's best interest. That's the lynchpin of the whole custody arena. And if the order says the child transfers from dad to mom or mom to dad, that's what we do, absent a compelling reason not to do it. And then clients are asking these questions.
NNAMDIFree Minds Book Club tweets: the closure of D.C. Superior Court means the D.C. Jail population will only increase, which could lead to crowding, shortages and medical care and insufficient staffing. D.C. must significantly reduce pretrial detention. Martin Austermuhle, the union representing the correction officers at the D.C. Jail voted no confidence in the jail's leaders' ability to handle the COVID-19 pandemic after many inmates came into contact with someone who tested positive. Have you seen the D.C. Jail make any efforts to handle this situation? And, if so, what are those efforts?
AUSTERMUHLEWell, I will say I was actually coincidentally working on another story in the D.C. Jail about two weeks ago, a little more than two weeks ago. And already, at that point, I noticed that there were small things happening. There was more use of face masks by staff. There was encouragement that inmates wash their hands and not come into too much contact. But it was like it was scatter shot. It didn't seem like it was a systemic approach, necessarily.
AUSTERMUHLEAnd I think what the union is now saying, the correctional officers, is that there is no system in place. That if there are little efforts going on here and there, it's not because, you know, there's a system-wide effort to stop the spread of the coronavirus in a facility like that. And I think that concern has been raised over the last couple days. There's now five positive inmates in the D.C. Jail, but there's only be eight tested so far. So, you can imagine the complaints just outside of the prison is that we don't know how many people are infected, because there's not that much testing going on. The same thing applies in the jail.
AUSTERMUHLESo, I think the correction officers are very concerned about the fact that they may be dealing with a population that is highly infected, or infectable, and that they say they're not getting the protective equipment to deal with people in confined spaces.
NNAMDIPremal Dharia, I'll ask you to respond to Free Minds Book Club's tweet, and that is: D.C. must significantly reduce pretrial detention. Is that something you would agree with?
DHARIAAbsolutely. I think it's imperative. A couple of things in response to that. One is that Defender Impact is part of a coalition of local and national advocates, including Free Minds, as well as the Justice Policy Institute, the ACLU of D.C., Washington Lawyers Committee, and others. And we sent a comprehensive letter to the mayor and other city officials and leaders recently that outlined a number of ways in which leaders could act to do just that, to reduce pretrial detention.
DHARIAThere are legislative changes that can be implemented. There are decreasing arrests the police could be making. There are just a number of ways that the courts could be acting -- and prosecutors, as well -- to everyone to play their part to reduce the number of people that are detained in our jails. This is important, because jails are inherently congregate settings. So, even as others have described the measures that might be taken inside to mitigate the transmission of COVID-19, there's no way to really stop it or to contain it inside a jail setting. And so reducing the number of people on the inside is the most effective way to stop the transmission of the infection.
DHARIAAnd in D.C. -- oh, sorry, go ahead.
NNAMDINo, you go ahead.
DHARIAIn D.C., there are -- we're still seeing -- while there have been some changes made, some small changes made. We are still lagging so far behind other jurisdictions. My understanding is just this morning on the lockup list, which is the list of people who were arrested last night and early this morning, that there were at least 42 people, some of whom were arrested for things like driving with a permit, or misuse of their temporary tags.
DHARIAThese are the kinds of things that we need to stop arresting and booking people for, because that contact that comes from booking into cell blocks and entering into the courthouse and potentially into the jail, it's what's going to exacerbate the problem that we have. We have a number of people in our jails that could very easily be released immediately, including a number of people that were included in the recent motion filed by the Public Defender Service just a couple of days ago, seeking the release of all people who have been sentenced to misdemeanors in D.C. Jail, which adds up to almost 100 people.
NNAMDIAnd that hasn't happened yet?
DHARIAThat has not happened yet. This is action that could be taken quickly and would result in meaningful reductions in the number of people in our jail. And we're seeing officials act very slowly. The court is acting very slowly. We're seeing prosecutors in our city objecting left and right to requests for the release of people made by their lawyers.
DHARIAOur leaders in the city are not acting in line with the kinds of leadership we're seeing in other big cities and places around the country. New Jersey just released a number of people from their jails consistent with what the D.C. public defender's motion requests. In San Francisco, in Houston, Texas, we're seeing collaboration among city leaders in trying to decarcerate their jail facilities, because they know and understand the risk of widespread transmission, and the rate at which it will happen consistent with what we've seen at Rikers Island, for example.
NNAMDIU.S. Attorney General William Barr has directed federal prisons to release older prisoners with underlying conditions to prevent the spread of COVID-19. Premal Dharia, does the D.C. Jail plan to implement a similar policy, as far as you know?
DHARIAThose kinds of recommendations are exactly what the coalition that Defender Impact is a member of recommended and what many other advocates have been recommending. A lot of people in the D.C. Jail are, for example, also they're in parole warrants that fall into that category. There are a number of recommendations for people who are in these categories to be released from D.C. Jail. Action is happening very slowly.
DHARIAThe U.S. Parole Commission has agreed to take some action and to implement some guidelines. It still remains to be seen whether it becomes official policy and then how quickly it takes hold. There are also actions that D.C. can take for people who are sentenced on D.C. code offenses to seek early release, particularly if they're elderly or vulnerable to COVID-19 because of underlying conditions.
DHARIAD.C. code offenses were not included in the First Step Act's compassionate release provision. And so the D.C. Council and the mayor have the opportunity to implement that kind of legislation here to allow for people who are charged and convicted under the D.C. code to also be given the kinds of opportunities that other people around the country have been given.
NNAMDIIndeed, we got a tweet from Abigail Fox: Thanks to public defender Andy Elders for asking how local incarcerated people are doing. Perhaps Kojo can ask Commonwealth attorneys on the show to discuss reducing sentences, overcrowding, getting early release. Maybe Steve Descano can tell us what's going on. Well, there we have a show or segment suggestion coming from Abigail Fox. We'll certainly be looking into that. Martin Austermuhle, how about law enforcement agencies? How are they protecting their officers?
AUSTERMUHLEWell, the police department, from the beginning, they had said, from earlier this month, city officials -- at least in the District -- had said that police officers have access to all the protective equipment that they need. They're going to be doing a lot more work basically from the comfort of their car or from an office. You can file police reports now over the internet or over the phone. There's going to be less of police knocking on doors to take reports, that sort of stuff.
AUSTERMUHLEBut I do want to tap into one thing that was just quickly mentioned, and that's the issue of the power that the police have in this debate. So, in the District at least -- and I know this has happened in other places across the country, police are now able to write more citations instead of arresting people. Citations, basically, it's a ticket essentially that says you have to come to court at some point in the future for this offense that I am charging you with instead of arresting you, taking you to the court, having you in the cell block, having you wait for a hearing and then maybe letting you loose or putting you in the D.C. Jail.
AUSTERMUHLEI've requested -- I haven't gotten it yet, but I think we're still looking to see how much data exists to show if this is or is not happening. Because this ties into the issue of how many people are being fed into the jails, not just in the District, but across the region.
NNAMDIHere now is Greg in Harpers Ferry, West Virginia. Greg, you're on the air. Go ahead, please.
GREGHey, Kojo. Dig your show, brother. My wife works in the West Virginia DOC, where they are deemed essential employees. And I would just like to point out that these employees are forced to work in what is essentially a Petri dish. They've been told that masks and gloves are on order, but no word as to when they're coming.
GREGPrisoners have never been allowed to clean with something like bleach. It's considered dangerous. So, it's just a super-unsafe place for anybody to be working. And, yeah, I essentially know that it's about to come home to my house, and I'm at very high risk from this. So, it's an unpleasant situation for the employees, as well as their families, as well, of course, of the inmates. And the government should've been moving much faster on this. Thanks.
NNAMDIGreg, thank you very much for your call. Doug Milman, in the next 30 seconds, that's about all we have, has your firm had to lay off any workers or make any other cuts?
MILMANNo, we haven't. We're a small firm with just two partners and one staff, but we've noticed that business is slowing. Obviously, the litigation part is slowing, but I emphasize that we are here. We're open, and we want to help our clients and potential clients. These are difficult times.
NNAMDIThat's about all the time we have. Douglas Milman is a divorce lawyer with Wexell Milman Virginia Family Law Firm. Martin Austermuhle is a WAMU reporter. And Premal Dharia is founder and director of Defender Impact Initiative. Thank you all for joining us. This segment on criminal justice during the age of the coronavirus was produced by Richard Cunningham. And our conversation about healthcare workers during the pandemic was produced by Lauren Markoe.
NNAMDIComing up tomorrow, we're closing in on Census day, April 1st. How is the census going amid the coronavirus pandemic, and can it be postponed? Plus, Joshua Myers, author of "We Are Worth Fighting For," joins us for a conversation about the 1989 Howard University protests and the history of black student activism. That all starts tomorrow, at noon. Until then, thank you for listening. I'm Kojo Nnamdi.
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