The threat of COVID-19 has shaken and, in some cases, loosened the shackles of the criminal justice system from top to bottom.
Locally, Havre’s police department recently relaxed its arrest policy. At the state level, the ACLU of Montana filed a lawsuit Monday on behalf of a nonprofit watchdog group, asking the Montana Supreme Court to intervene and reduce the number of people in the state’s jails, prisons, and correctional facilities.
The number of Americans infected with the highly contagious respiratory disease has risen past 200,000.
In Montana, of the more than 5,400 confirmed cases, 24 patients have been hospitalized and five have died as of Friday afternoon.
The pandemic puts justice in a difficult balancing act between keeping the public safe and protecting everyone, including suspects, prisoners, and correctional officers, from the illness.
Fewer Arrests In Havre
One local law enforcement leader recently said there are few good options, given the choices.
Havre Police Chief Gabe Matosich has been in law enforcement 26 years, and said he never has been confronted with some of the challenges he is now. His department has relaxed arrest criteria as part of an effort to keep the local jail less crowded and limit overall human interaction.
“We are not arresting unless we absolutely have to,” the chief said Thursday. “Unfortunately, crime still continues.”
His officers, each of whom have N-95 masks, still are arresting people who commit felonies and violent crimes, as well as high misdemeanors such as domestic abuse and stalking, he said. Suspects caught driving under the influence, on the other hand, may be taken into custody long enough to sober up, then released.
A review of the week’s police logs shows Havre officers made at least six arrests between Friday and Thursday. That number could be higher, as some log entries allow the possibility for either a citation or arrest.
The police log also shows that on Saturday, a 44-year-old woman was ticketed for DUI and driving with a suspended or revoked driver’s license, charges that normally merit an arrest.
The Hill County Detention Center started the week with fewer inmates than it finished it. On Sunday, 24 inmates were being held there; by Friday, the number was 28. In context, 28 inmates is a relatively low number compared with the average generally over the years.
Matosich likens the new approach to a “catch-22.” He admitted that arresting fewer people could have repercussions. Among them, he foresees the hypothetical suspect who is arrested after being let go days earlier, but who hadn’t abided by social distancing guidelines while out and is jailed with COVID-19, canceling out the goal of the new non-arrest rule.
The laxer protocol also has the potential to pose safety risks to the general public, Matosich acknowledged, adding that “no matter where you go,” there is no satisfactory solution.
The new policy is “fluid,” he pointed out, and subject to change as the department sees fit.
Group Sues To Release Inmates Across Montana
The issue of who to keep in Montana’s jails and prisons and who to let out is a concern at the top level of state government.
On Wednesday, Gov. Steve Bullock ordered the Department of Corrections to halt new transfers into state correctional facilities. The directive refers to any new transfers from out of state, from one Montana facility to another, and from regional facilities such as a county jail into a state correctional facility. But it still allows the DOC director to authorize new transfers to correctional facilities, although those transfers would be quarantined for 14 days.
Bullock’s directive also asks the Board of Pardons and Parole to consider releasing older inmates, inmates with medical conditions that put them at high risk for COVID-19, and those who are near their release date, so long as the board determines that release “does not pose a public safety risk.”
But, according to one Department of Corrections official, those in prison are there for a reason.
Responding to the recently filed lawsuit by the nonprofit Disability Rights Montana, which is asking the Supreme Court to uniformly order all lower courts to release inmates with disabilities, DOC Communications Director Carolyn Bright said, “The offenders currently in prison remain there because they are higher risk, serving sentences for sexual or violent offenses, or cannot have their often extensive needs met in communities.”
Letting them out would create other problems, Bright added. “Most of these offenders do not have adequate access to housing, employment, community medical providers, transportation, treatment services, or the other supportive services that are critical to their health and success in the community,” she said.
DRM is asking the Supreme Court to order lower courts to release people with disabilities who have conditions or diseases that puts them at increased risk of severe complications or death from COVID-19. The group specifies that its petition does not include people who have committed offenses such as homicide, assault, kidnapping, robbery, sexual crimes, offenses against the family, and human trafficking.
The lawsuit also cites an Office of Justice definition of what constitutes a disability. A link included in the lawsuit lists six specific disability types: hearing, vision, cognitive, ambulatory, self-care, and independent living.
DRM also asks the high court to:
- Order release of “…any other individual for whom a release is appropriate.”
- Suspend any lower court practices that detain people for minor infractions such as failures to pay fees and fines.
- Urge local police and sheriff’s departments to arrest fewer people.
- Order release of people who will have completed their sentences and are scheduled to be released within the next six months.
- Order release of people who are incarcerated for violating parole but have not been charged with committing a new offense.
The lawsuit argues the Eighth Amendment says that subjecting prisoners to “unreasonable risk of future harm” is illegal. It adds: “Physical distancing is impossible in correctional facilities. Many, if not most, facilities across the state are already overcrowded.
“There are over 5,000 human beings in our prisons and jails, and many suffer disabilities. None of them have been sentenced to illness or death,” the lawsuit says. It claims 32% of prisoners and 40% of jail inmates have at least one disability and that “contraction of COVID-19 was not ‘within the sentence imposed’ prior to the pandemic.”
Many local governments are “undertaking heroic efforts to protect the incarcerated population,” DRM said, applauding Chief Justice Mike McGrath’s directive to lower courts to do what they can to reduce jail populations.
On March 20, McGrath directed judges of limited jurisdiction to review their local jail rosters and release as many inmates as possible, especially those being held for non-violent offenses. The point of the directive was safety for inmates, facility employees, and defense attorneys, McGrath said in his letter.
McGrath’s directive, however, was applied beyond the discretion of limited jurisdiction judges in at least one known case.
In a story published a week ago, The Havre Herald reported that two former Hill County Detention Center inmates were released with COVID-19 as a consideration. One of the inmates, a convicted felon who led police on a dangerous chase around Havre, was released by District Court Judge Jon Oldenburg. But upon release, the man was picked up on a warrant from Rocky Boy, where he is now in jail for allegedly leading tribal police on two pursuits while serving probation for the Havre chase.
Despite some courts doing their part, it’s not enough, DRM believes. The lawsuit cites Cascade County courts, which have refused to release any individuals because of the pandemic, the group says.
In an unusual move, Montana’s Supreme Court ordered attorneys to respond to the lawsuit by Monday — just five days from its filing — given “rapidly evolving circumstances of the COVID-19 situation.”
Two of the justices, Dirk Sandefur and Jim Rice, dissented from the order to act so quickly.
Sandefur wrote, “Without in any way underestimating the magnitude of the COVID-19 threat to incarcerated persons, and particularly those most at risk, we cannot and should not disregard adherence to the most basic procedural and substantive rules of law that govern such proceedings and requests for relief.”
Bright, speaking on behalf of the DOC, believes that if the lawsuit prevails, it would strain an already stressed society.
“The effect of the litigation, if successful, could be a mass release of offenders into homelessness during a time in which our healthcare system and other social services are already strained due to COVID-19,” she said. “These are not easy decisions and it is disappointing to see the ACLU resort to litigation rather than working toward a solution that ensures the safety of all Montanans, including Montanans who are incarcerated.”
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Paul Dragu is the editor of The Havre Herald. Write to Paul at firstname.lastname@example.org