By the time the jail reported its first staffer with COVID-19, Harris County Judge Lina Hidalgo had spent days working on an executive order that would allow broad-scale compassionate releases of medically vulnerable, nonviolent inmates. But the effort has been complicated by an opinion from Texas Attorney General Ken Paxton, indicating to local officials the state may try to intervene.

Hidalgo explained Thursday that she and her staff are retrenching and “evaluating all options” in the wake of Paxton’s Wednesday ruling, even as the urgency increased with the announcement Thursday that a male sheriff’s deputy in his late 20s had been infected with the new coronavirus. He last worked March 21 at the 1200 Baker Street administration building.

“Healthcare professionals have urged us to reduce the amount of people in the jail downtown, where 8,500 inmates and thousands of employees come into close contact,” the county judge said. “We are working to increase social distancing between healthcare employees, detention officers and inmates. That may require moving inmates to other facilities or the early release of some non-violent offenders.”

On HoustonChronicle.com: Sheriff seeking compassionate release of some inmates at the Harris County Jail

Hidalgo’s move follows impassioned pleas for such releases by Sheriff Ed Gonzalez, who said that the coronavirus could “spread like wildfire” among inmates at the lockup. The draft, which was near completion, would deputize the sheriff to assess who would be released on a general order bond. Among the stakeholders reviewing multiple drafts were officials from the district attorney’s and sheriff’s offices, the county attorney and officials from the pretrial services division, who would assist in releases.

The sheriff was provisionally looking at about 500 people who fit the criteria. In the meantime, 15 people with symptoms were awaiting test results and another 400 are in observational quarantine with no symptoms, said Jason Spencer, spokesman for the sheriff. A massive outbreak at the jail would mean that inmates would overwhelm the Houston-area health care system, he said. “That’s going to make it tougher for others to get ventilators.”

Sheriffs, judges, law enforcement agencies and jails around the country have begun taking extraordinary steps to prevent mass infections in correctional facilities, including the Trump administration’s chief law enforcement official. Attorney General William Barr ordered the Bureau of Prisons to begin transferring elderly and medically compromised inmates to home confinement.

The county executive order would have allowed eligible elderly and medically fragile people awaiting trial on nonviolent charges to be freed to await trial on bond.

The Texas attorney general’s executive order slowed progress of the planned order. The opinion does not directly address compassionate releases. It says that “as a general matter, the (state), its agencies and its property are not under the authority of a local officer” — wording that caught the eye of lawyers at the Harris County Attorney’s Office as a possible glitch in an unprecedented compassionate release order.

“Governor Abbott’s executive order makes the need for continued, unburdened operation of state offices clear,” Paxton said in a release issued Wednesday.

The state’s emergency stance indicates that the governor can have purview over “the movement of people and occupancy of premises within a disaster area during a health event.”

The attorney general’s office did not respond to multiple requests for comment.

Hidalgo has explored other options for addressing what experts say is a dangerous public health situation at the jail, including isolating vulnerable inmates in another facility or working collectively with the judges on releasing such inmates.

Experts in corrections say addressing the pandemic at jails is vital to everyone’s health.

Michele Deitch, who specializes in corrections policy and management and is a University of Texas law school lecturer, said Harris County officials have been commendable in their thinking, but the work has been too piecemeal.

“It can’t just be fiddling around at the margins with a few people here and a few people there. These need to be very deep cuts in the population,” she said.

The population needs to be dramatically and rapidly reduced “to avert a catastrophe.”

“First, because being incarcerated in the jail should not be a death sentence, and there are so many medically vulnerable people there,” she said. The reduction will also reduce strain on the jail medical system and allow some social distancing among the smaller population.

Elsewhere, a supreme court justice in New Jersey released 1,000 jail inmates on compassionate releases, and Los Angeles County has released 1,700 people from its jail.

“There’s lots of really good things going on in different parts of the county,” Deitch said. “Lots of areas are bringing their jail populations down through different strategies. It is a really collaborative effort between sheriffs and judges and prosecutors and defense attorneys to get out everyone who can plausibly be let out without putting public safety at risk.”

Since the sheriff began pushing to remove some vulnerable people from the equation, state district judges, many working remotely, have been combing through their dockets, contacting lawyers and trying to make these determinations piecemeal. Several said that while they’re balancing risks, they don’t want inmates at risk of death because of the fast-moving contagion.

The judge’s releases have resulted in a 4 percent increase in felony pretrial releases in just over a week, said Jay Jenkins, Harris County’s project attorney for Texas Criminal Justice Coalition, who regularly studies fluctuations in jail population.

“To have any impact, the releases have to be large scale,” Jenkins said. “In that way, it is a failure of leadership. … If someone doesn’t step up, this is going to be a disaster.”

The sheriff’s office estimated that about 500 inmates are potential candidates for release under the order because they face nonviolent charges and are especially at risk due to their age or pre-existing medical conditions, Spencer said.

For Alec Karakatsanis, the lead attorney in the cases challenging Harris County’s wealth-based bail practices, it’s time for action.

“The sheriff has long explained that there are thousands of people inside the jail who pose no public safety risk,” he said. “The jail doctors have said that they need to reduce the jail population by several thousand people to have any hope of preventing an outbreak that spreads to the community and overwhelms Houston hospitals.”

Judge Franklin Bynum, who has been at the forefront on bond reform efforts among the misdemeanor judges, put it bluntly, saying judges at this moment in history have only two choices.

“Judges can sign orders releasing people now, or they can sign dismissals later for the people that will die in the jail,” he said.

gabrielle.banks@chron.com

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