The Pennsylvania Supreme Court denied a request by the American Civil Liberties Union (ACLU) to order the release from county jails certain classes of persons in response to possible covid-19 outbreaks.

The ACLU had filed an application for relief under the court’s King’s Bench jurisdiction, which would allow the court to decide an issue that is not pending before any lower court. The group asked for the court to order county common pleas courts to release people who are at high risk from covid-19, as well as those persons held pretrial and persons being held on short sentences for minor offenses.

In denying the order, the court emphasized that the ACLU’s request did not “take into account the potential danger of inmates to victims and the general population.” However, the court did recognize the dangers covid-19 poses to persons in county jails who are unable to practice isolation and social distancing in any meaningful way, and ordered the president judges of each judicial district “to coordinate with relevant county stakeholders” to determine appropriate measures, including “to identify individuals and/or classes of incarcerated persons for potential release or transfer . . . [i]f utilization of public health best practices is not feasible due to the population of the county correctional institutions.”

In a concurring opinion, Chief Justice Saylor wrote that, “In my view, the primary authority to release qualifying prisoners on account of a disaster emergency rests with the Governor . . . and/or the General Assembly” rather than with the judiciary.

Witold Walczak, legal director at ACLU of Pennsylvania, nonetheless thought the court’s decision represented a victory, since the order to the president judges “shows that the court agrees with our underlying premise that action must be taken to reduce jail populations in order to keep them safe.”