New Hampshire is not considering a mass release of inmates due to the coronavirus outbreak but rather is reviewing inmates who are nearing the end of their sentences for nonviolent crimes on a case-by-case basis.

Attorneys and corrections officials say they are also taking a second look at those detained pretrial to determine whether they can safely be released into the community with monitoring and supervision. At the same time, lawyers on both sides are working with the court system to fast-track plea and sentencing hearings for incarcerated offenders who may qualify for a time-served sentence, suspended prison time with a period of probation, or an alternative sentencing program, with the goal of freeing up space in the state’s county jails.

For those facing new crimes during COVID-19, judges are considering incarceration as a last resort and working with attorneys to utilize pretrial services, electronic monitoring, at-home confinement and other supervision tools to release offenders who they deem are not a public safety risk.

“It’s all very case specific – and it has to be if we are going to do this right,” said Strafford County Attorney Thomas Velardi, the president of the New Hampshire Association of County Attorneys. “The idea that you can open up the jails across the state because we’re facing this unique set of circumstances is irresponsible. We have to go through each and every case and assess whether there is a way to safely supervise (offenders) in the community.”

But not every defendant in New Hampshire has equal access to pretrial services and monitoring programs. While the capital region and more densely populated areas to its southwest are uniquely positioned to handle the demand, counties north of Concord, for example, face a greater hurdle in how to safely release inmates.

“This is a very difficult conversation to have in places that don’t have bail supervision programs,” Velardi said. “Frankly, I don’t know how you even have this conversation.”

While New Hampshire’s correctional facilities have remained largely untouched by illness from COVID-19, officials realize one case could change everything. A corrections officer at the Merrimack County jail and an employee of the New Hampshire State Prison for Men both tested positive for the virus in recent weeks, but neither of those cases affected the inmate populations.

Since the start of the coronavirus outbreak in the state, the American Civil Liberties Union of New Hampshire and the New Hampshire Association of Criminal Defense Lawyers have called upon state officials, judges, prosecutors and superintendents to take immediate steps to release the elderly and people in poor health from correctional facilities when possible. They’ve also called for fewer arrests.

Conversely, the victim advocacy community has expressed concern about the early release of offenders, especially those who don’t have support systems and treatment plans in place and who’ve previously re-offended. Domestic violence survivors’ fears are particularly heightened during this time, as illustrated by a recent case of early release granted to a perpetrator in Carroll County, advocates said. Scared that their abusers may be freed, victims are rushing to create safety plans and consider alternative living options should the need arise.

Law enforcement officers say they are also bracing for the reality that recidivism rates could rise if the right mechanisms aren’t set up to supervise offenders. They also caution that a catch-and-release policy to reduce the jail population may have unintended consequences.

Who is eligible

Both the state prisons and county jails are working with prosecutors and defense attorneys to identify inmates who are medically frail and/or close to their release dates.

State prisoners convicted of murder, manslaughter, felony sexual assault, first- or second-degree assault, robbery, escape or aggravated driving while intoxicated are not eligible for at-home confinement, according to New Hampshire Department of Corrections policy. Inmates who committed assault while incarcerated or who had their at-home confinement status revoked also don’t qualify.

The department has undertaken expedited reviews and so far identified two inmates who judges approved for early release at the end of March. Both resided at Shea Farm, a transitional housing unit, said public information officer Laura Montenegro.

“These two cases were not medically at risk but did have viable safe housing plans and did not present at this time as a public safety risk,” she said.

The system is also reviewing parolees who were sent back to prison for technical violations that did not involve a new crime.

About a dozen inmates were released from the Merrimack County jail in Boscawen during the first few weeks of the pandemic. Superintendent Ross Cunningham said stakeholders are engaged in ongoing discussions about which nonviolent, low-risk offenders may be eligible for at-home confinement.

In one recent case, a pregnant mother’s request for release due to her fragility was denied because of prior drug court violations. However, she was ultimately freed on the condition that she join a drug treatment community for new mothers at Hope on Haven Hill in Rochester.

Given the state’s sweeping bail reform efforts aimed at reducing the pretrial detention, attorneys said those eligible for release were likely already identified, with a few exceptions.

“Bail reform has had the prosecutors really paring out the people who are incarcerated,” Merrimack County Attorney Robin Davis said in a recent phone interview. “I think we were in a good position before this.”

Davis said the county is also fortunate to have a “robust” pretrial services program. As attorneys consider moving additional offenders into that program, they are simultaneously reviewing successful participants who may no longer need supervision as a way to create opportunities for those with greater need.

When determining who may be eligible, Davis said she considers a person’s criminal history, employment status, age, living arrangements in the event of release, as well as the support system that person has in place in the community.

“Generally when I see a negligent homicide, felony-level assault, sexual assault or child porn, the inclination is that they would not be able to be released into the community,” she said. “We look very closely at the facts of each case. Different cases have a different level of dangerousness based on what those facts are.”

In the end, a judge is the ultimate arbitrator and must sign off, even in cases where both parties agree.

Like in Merrimack County, the criminal justice system in Strafford County was uniquely positioned to respond to the crisis, Velardi said in an interview last week. Before entering the jail, offenders are screened about a wide range of topics, including about any history of mental illness or substance misuse, in addition to if they have a safe residence to return to after incarceration.

Velardi said COVID-19 has shown the value of those screenings.

“When a pandemic like this hits or any cataclysmic event, we can say who is in our jail and why they’re there,” he said.

“We supervise more than 400 people in the community,” he continued. “There are 62 people in our jail.”

Velardi said judges have long considered a defendant’s age when ordering bail conditions and when handing down sentences. What has changed during the pandemic is that younger defendants are seeking early release due to pre-existing medical conditions, he said. However, judges in Strafford County have yet to make significant changes to a defendant’s incarceration status solely due to health concerns stemming from COVID-19, he said.

Prosecutors and defense attorneys say they are constantly working in consultation with each other and superintendents at correctional facilities to determine the best course of action. In their assessment of pretrial detainees, they are identifying those nearing plea deals to see if they can continue to move cases through the system, both in an effort to release defendants when appropriate and also to help chip away at a mounting case backlog exacerbated by this pandemic.

Making the call

Randy Hawkes, executive director of the New Hampshire Public Defender program, said all of the stakeholders in the criminal justice system share a common goal: Reduce exposure to COVID-19 without jeopardizing public safety.

“No one should ascribe to a nefarious intent on the part of any stakeholder as to why so few inmates have been released thus far,” he said.

He echoed the sentiments of prosecutors in saying that because of bail reform very few of the inmates currently detained in New Hampshire’s jails are candidates for release.

“And, frankly, the release of those currently in jail is fraught with negative implications,” he said. “No one wants to be responsible for a decision to release someone who later commits a transgression serious enough that those involved in the release decision are publicly pilloried.”

While inmate releases in recent weeks have generally occurred outside the public eye, one emergency hearing in Carroll County drew significant attention from the victim advocacy and criminal justice communities alike.

On April 3, a judge granted early release to at-home confinement for Terrance Perkins, who was convicted of felony-level criminal threatening for a domestic violence incident involving a gun used against an intimate partner and a child in Tamworth in 2016. He was sentenced this past November to one year in jail and suspended prison time, in addition to probation, according to published reports.

However, Perkins was indicted on a new felony charge in January, accusing him of assaulting a female corrections officer at the jail.

Judge Amy Ignatius, who presided over the domestic violence case, granted early release after the jail superintendent said he could not ensure Perkins’s safety in the wake of COVID-19. Perkins has diabetes and underlying heart issues, his attorney told the court.

“This isn’t about feeling he should get special treatment,” Ignatius said. “It has to do with the overall facility and the management of that facility in a way that’s safe for everyone.”

The New Hampshire Coalition Against Domestic and Sexual Violence adamantly opposed the decision, which they said failed to consider the rights and safety of the two victims.

“In a state where over 50% of homicides are domestic violence-related, much greater care and consideration must be taken before making decisions that could threaten the lives and safety of women and children,” the coalition said in a statement.

Since the ruling, some elected officials, including one top attorney, have taken a public stand against early release for violent offenders, specifically perpetrators of domestic violence.

“You can rest assured that here in Belknap County we are not agreeing to early release or bail reductions for any Def. who has engaged in domestic or sexual viol. Victims come first,” Belknap County Attorney Andrew Livernois posted Wednesday on Twitter.

During a recent press conference, Gov. Chris Sununu called the recent ruling in Carroll County “alarming.”

“We want to make sure that this isn’t a pattern,” he said. “You would hope that that judge used the best judgment in that call. But on the surface of it, it’s very alarming, without a doubt.”

In a statement last week, the governor’s office told the Monitor that Sununu is not opposed to at-home confinement in cases where public safety criteria are met. However, the office said Sununu “has serious concerns with inmates being released early, some of whom are dangerous and perpetrators of domestic violence.”

Attorneys say they generally remain in agreement that only nonviolent, low-risk offenders should be reviewed and that the Perkins case was an exception to the story of inmate release in New Hampshire due to COVID-19.