At least six of North Carolina’s largest counties are ordering the release of jail detainees as a preventive measure against COVID-19, the illness caused by the new coronavirus.

Buncombe, Durham, Forsyth, Guilford, Mecklenburg and Wake counties have all confirmed that they are releasing detainees as a means to lower jail populations. The fewer people who are in the jails, the easier it will be to enforce preventive measures — such as medically screening staff and those arrested — to keep COVID-19 out of the facilities.

If the virus gets into a jail, lower populations will mean the illness will be easier to contain and fewer people who will be exposed, which would protect both the people in jail and communities at large.

When discussing the releases, Aaron Sarver, public information officer for the Buncombe County Sheriff’s Office, stressed the difference between jail and prison.

The people being released from the Buncombe County Detention Center are all pretrial, Sarver said, meaning they have not been convicted of a crime.

In some cases, people convicted of low-level misdemeanors and are serving time in the jails could also be released. Prisons, by and large, hold people who have been convicted of felonies.

Each of the six counties affirmed that they are releasing people charged with low-level offenses after review on an individual basis and that the release does not constitute a public safety concern.

The county decisions come amid mounting pressure from legal advocacy groups for the governor, district attorneys, sheriffs and the police to act now to protect the health and rights of people in jail.

Meanwhile, courts have closed, with some exceptions in order to provide due process to people who are already held in jail.

The decision to release detainees from jail is a county-by-county decision, according to Daryl Atkinson, co-director of Forward Justice, one of the groups advocating preventive action, along with the American Civil Liberties Union of North Carolina and the Conservatives for Criminal Justice Reform.

“Each elected sheriff, they are their own little fiefdom with regards to their powers related to the jail,” Atkinson said.

“I don’t know of any global authority that could demand that all of the jails in North Carolina respond a certain way.”

Between the sheriffs and the district attorneys, Atkinson said, criminal justice operates at a highly local level.

Public health response in jails

There are no confirmed cases of COVID-19 in any jail or prison in North Carolina yet.

However, jails are an important site for public health intervention because if the virus gets into a jail, it could quickly spread through the population and into the community, according to Lauren Brinkley-Rubinstein, assistant professor in the UNC School of Medicine and faculty member of the UNC Center for Health Equity Research.

“If it’s spreading really quickly because of the built environment of the jail, and we know that people then are also coming in and out pretty rapidly, then if they’re infected inside, they’re much more likely to come outside and bring it to their community,” Brinkley-Rubinstein said.

Tens of thousands of North Carolinians move in and out of jails every year. In 2015, the most recent year for which this data is available, North Carolina had an average of 16,871 people in jails every day.

This does not account for the churn through the jails, as most stints in jail are relatively short. Buncombe County, for example, has made 2,462 releases already this year. Some of these releases are for the same individuals who have been arrested and released multiple times.

Advocacy groups and public health experts recommend decreasing the movement of people through jails by decreasing the jail population now and by using citations and court summonses — instead of arrests – for low-level offenses.

People in jail also tend to be in worse health than people who have never been incarcerated. Brinkley-Rubinstein calls this the “social determinants of health.” Jails, because of the disruption to employment and daily life, actually make people less healthy — and that was before the COVID-19 pandemic.

People in jail are also more likely to have higher rates of poverty and less stable access to housing and jobs. These factors that cause poor health put people at greater risk for suffering complications from COVID-19, according to David Rosen, associate professor in the UNC Department of Medicine, who studies the intersection between incarceration and public health.

“People in jail are not only at greater risk of contracting COVID-19 because of the environmental conditions and an inability to engage in social distancing but because people in jail tend to have lots of health problems; they are also at high risk for suffering complications,” Rosen wrote in an email to Carolina Public Press.

Justice outcomes

The social pressures of COVID-19 are forcing national conversations around health care, paid sick leave and, now, criminal justice. The lessons learned in responding to COVID-19 may cause long-term changes in how some of our fundamental institutions are run.

As district attorneys and judges order people to be released from North Carolina’s jails, the conversation turns to who is held in jail and why they are there.

Mecklenburg’s district attorney, Spencer B. Merriweather III, released a statement reading, in part, “As both the detention center and the entire community will be under increased strain, my office will continue to work diligently to ensure that people in pretrial custody are the people who need to be – no more, no less.”

The question that arises out of this new approach is that if people are released from pretrial custody with little to no public safety concerns, why were they held in the first place?

Wake District Attorney Lorrin Freeman explained it this way: There are two considerations when deciding to hold people pretrial. The first is public safety, and the second is the likelihood to show up to a court date.

Freeman’s office is not compromising on public safety. Pretrial detainees who are seen as a public safety threat are not eligible for release due to COVID-19 concerns. However, Freeman said her office is deciding to release people arrested and charged with low-level offenses who have a history of not showing up for court dates.

The way the system currently works is that many people are held in jail on a bond. This is money that a person will have to pay to the county in order to be released from jail ahead of the trial and, if the person shows up to court, the money is given back. Bond, essentially, is an incentive to show up to a court date.

The problem, Atkinson said, is that the system is not really about public safety, because wealthy people can still buy their way out of jail for the same offenses with which a less wealthy person could be charged.

“One of the unintended consequences, potentially, of this horrible pandemic is that we see we could do that more as a matter of course, instead of a matter in extraordinary circumstances,” Atkinson said.

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