Inmate Releases due to COVID-19 Concerns Further Highlights Arbitrary Incarceration

The COVID-19 coronavirus pandemic dominates our lives and the news cycle. Social distancing, a foreign concept just weeks ago, is an every day reality. But for many in jail and prison it is impossible.

The Wall Street Journal published this article on March 22 highlighting the release of inmates who are high risk of illness, elderly, and "low-level offenders". Iran released over 50,000 prisoners in efforts to thwart the spread of coronavirus. In the face of real crisis, one's determination of "low-level offender" seems to change. South Carolina, Washington, and other states have judicially modified bail requirements in efforts to decrease incarceration and decrease the spread of COVID-19.

On April 3, the Massachusetts Supreme Judicial Court issued a plenary opinion addressing releasing people on bail, expediting parole releases, and encouraging amended sentences to reduce the risk and spread of COVID-19 in correctional facilities. The court concluded, "[d]ue to the crisis engendered by the COVID-19 pandemic, pretrial detainees who have not been charged with [certain] excluded offense[s] are entitled to a rebuttable presumption of release on personal recognizance, and a hearing within two business days of filing a motion for reconsideration of bail and release."

Defense counsel is a binary operator - we must advocate to best achieve the client's goal. On the other side of the judicial system, prosecutors, bail commissioners, and judges make daily decisions recommending and deciding the freedom of others. These decisions are difficult. What changed is that anyone, irrespective of their social situation, addiction, or poor decision-making can infect anyone else. Now, we are united on a daily battle of protection of one another. It has never been clearer that over-incarceration is not the answer.

Reis & O'Keefe have already secured the release of a client due to risk of exposure in jail. We continue to litigate for others held on bail, facing new charges, or seeking treatment in this new reality to find the safest alternative. Call us at 603-218-1910 for a free consultation.

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