Coronavirus in Texas Jails and Federal Prisons: Release Pending Trial

The Coronavirus Pandemic is unprecedented in its impact upon our lives, and this includes the criminal justice system.  The danger of coming into contact with COVID-19 is so great that “Stay at Home” Orders have been issued for Collin, Dallas, Denton, and Tarrant Counties as well as other communities across the state.

The Incarcerated are in “Petri Dishes for Infection”

Of particular concern:  those individuals who are incarcerated behind bars as they await trial.  Jails are being called “petri dishes for infection,” where the risk of exposure to the Coronavirus is exponentially higher than in the community at large.  Read, “Coronavirus Transforming Jails Across the Country,” written by Cary Aspinwall, Keri Blakinger, Abbie Vansickle, and Christie Thompson and published by the Marshall Project on March 21, 2020.

There are several reasons for this heightened susceptibility, as explained by the Centers for Disease Control and Prevention (CDC) in its Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, published March 23, 2020.

As explained by the CDC:

1. Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.
2. In most cases, incarcerated/detained persons are not permitted to leave the facility.
3. There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.
4. Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas.
5. Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions.
6. Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles.
7. Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures.
8. Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19.
9. Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges.
10. The ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants.
11. Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation.

For more on the risks of Coronavirus in a jail or prison, read “Covid-19 Poses a Heightened Threat in Jails and Prisons,” written by Emma Gray Ellis and published by Wired on March 24, 2020.

Coronavirus in Texas Prisons and Jails as of March 26, 2020

On March 16, 2020, a letter was sent to Texas Governor Greg Abbott by the Texas Criminal Justice Coalition, asking for specific help addressing the “the grave threat that a COVID-19 contagion poses to incarcerated populations and staff members.” Read the letter here.

Within a week’s time, COVID-19 was been confirmed at Lychner State Jail near Houston, as well as at the Holliday Unit in Huntsville and at the Dallas County Jail. The numbers, of course, are expected to rise.

As of March 26, 2020, Dallas County reported four more inmates tested positive for COVID-19.  Over at Lychner, the 58 men who shared the dormitory with the man who tested positive remain together, quarantined as a group.  For more, read “Coronavirus is officially in Texas prisons and jails. Now what?” written by Jolie McCullough of the Texas Tribune and published by News4SA on March 26, 2020.

Federal Bureau of Prisons Ability to Deal with Coronavirus

The federal Bureau of Prisons may well have been blindsided by the Coronavirus Pandemic.  It is reported that one of the first federal employees to test positive for COVID-19 works at the Grand Prairie, Texas administrative facility.

On March 25, 2020, the BOP began a 14-day quarantine of all new inmates entering a federal facility.  See, “Two-Week Quarantine Set for New Federal Inmates,” published by Crime and Justice News on March 25, 2020.

Meanwhile, members of the House Judiciary Committee have written two letters to U.S. Attorney General William Barr requesting information concerning the Department of Justice’s (DOJ) handling of the Coronavirus Pandemic and the health and safety of both (1) those imprisoned and (2) those working in federal prisons.

On March 12, 2020, Committee Chairman Nadler requested information from DOJ about their handling of the health crisis.  No response.  A second request was sent on March 19, 2020.

From the Committee’s Press Release and Correspondence:  “The Federal Bureau of Prisons currently imprisons 175,000 people in about 100 facilities throughout the country. The U.S. Marshals Service has an additional 75,000 people who are incarcerated pretrial, many in local jail or private contract facilities….”

“With large numbers of people living in close proximity to one another, many of them elderly or living with chronic diseases, DOJ must act now to save lives. Accordingly, we urge you to put in place measures to ensure that both the flow of prisoners into federal facilities is slowed significantly and that prisoners who can and should be released are released forthwith. We cannot wait any longer to take action.”

Read the press release and both letters sent to the Attorney General by Congress here.

State and Federal Systems of Criminal Justice

Of course, there are two independent systems of criminal justice operating in Texas:  those of the state and the federal jurisdiction.  How to deal with the dangers of coronavirus being spread among the incarcerated populations in each system will be decided differently.

Of particular concern right now are those who are behind bars while awaiting trial.  They are innocent until proven guilty, and face tremendous danger of serious or permanent harm while their trials are pending. 

State System

The state and federal systems differ on how people are able to retain their freedom after being arrested and pending trial.  If the charges are based upon Texas state law, then the system of bail and bail bonds will be used.  For more, read:  Bail in Texas: What’s All This about Bail Reform? Can You Get Out Of Jail?

Right now, more and more jury trials in Texas criminal courts are being halted and delayed as part of the attempt to slow the spread of COVID-19.  See, “Coronavirus pauses many Texas court proceedings. For some, that means more time in jail,” written by Jolie McCullough and Emma Platoff and published by the Texas Tribune on March 19, 2020.

This means that innocent people sitting in jail on state criminal charges are watching their trial dates being pushed back as part of an overall Coronavirus response.

TCCP 17.151 Application in Coronavirus Pandemic

Accordingly, one defense argument may be found in Article 17.151 of the Texas Code of Criminal Procedure (TCCP), entitled “Release Because of Delay.”  It provides as follows (emphasis added):

Sec. 1. A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within:

(1) 90 days from the commencement of his detention if he is accused of a felony;

(2) 30 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment in jail for more than 180 days;

(3) 15 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less;  or

(4) five days from the commencement of his detention if he is accused of a misdemeanor punishable by a fine only.

Sec. 2.  The provisions of this article do not apply to a defendant who is:

(1)  serving a sentence of imprisonment for another offense while the defendant is serving that sentence;

(2)  being detained pending trial of another accusation against the defendant as to which the applicable period has not yet elapsed;

(3)  incompetent to stand trial, during the period of the defendant’s incompetence; or

(4)  being detained for a violation of the conditions of a previous release related to the safety of a victim of the alleged offense or to the safety of the community under this article.

TCCP Art. 17.151 deals with situations where the State of Texas is not ready to go to trial and the defendant remains incarcerated.  The law establishes different time lines depending on the level of offense (see the deadlines in bold, above).

If the prosecutor is not able to announce ready for trial after that statutory time period has passed, then under TCCP Art. 17.151, the incarcerated defendant is entitled to be released on personal recognizance (PR) bond.

Given the various orders that are delaying trials across Texas based upon the Coronavirus Pandemic, defense arguments may be available for defendants that the COVID-19 Delays are grounds for release pursuant to TCCP Art. 17.151.

This has not been decided yet, but it looks to be a viable argument in state proceedings.

Federal System

Things are different in the federal criminal justice system.  Bail is not common in federal arrests. There, the federal judge, at his or her discretion, may order the individual released on his or her personal recognizance or released before trial subject to specific conditions.  The individual may also be placed in temporary detention or detained behind bars until trial.  See, e.g., United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987).

Judicial Response to Coronavirus Pandemic: Federal Courts

With a hat tip to Jason D. Hawkins, Federal Public Defender for the Northern District of Texas, I provide the following regarding the federal system changes:

Fifth Circuit Court of Appeals COVID-19 Orders

Defense attorneys should be aware that the United States Court of Appeals for the Fifth Circuit has suspended until further notice the requirement to file paper copies of electronically filed pleadings and documents. (The Clerk of the Court may direct the parties or counsel to provide paper copies of filings on a case-by-case basis, and at a future date, parties or counsel may be directed to provide paper copies of filings previously submitted electronically.)  Read Order – General Docket 2020-3.

Oral arguments are being cancelled until further notice.  Filing deadlines for pro se litigants are being extended.  More changes are expected as the Coronavirus Epidemic continues.

SCOTUS COVID-19 Orders

The United States Supreme Court has extended the deadline to file any Petition for a Writ of Certiorari due on or after March 19, 2020, by 150 days from the date of (1) the lower court judgment, (2) order denying discretionary review, or (3) order denying a timely petition for rehearing.  Read the SCOTUS Order of Thursday, March 19, 2020.

Federal District Courts COVID-19 Orders

Each of the four federal district courts will issue their own, individual responses to the Coronavirus Pandemic.  So far, we know the following:

Northern District of Texas

Barbara M.G. Lynn, Chief Judge in the United States District Court for the Northern District of Texas, has issued a series of orders thus far in response to the Coronavirus Pandemic.  Among them are:

• March 13, 2020: Special Order 13-5
• March 18, 2020: Special Order 13-6
• March 19, 2020: Special Order 13-7

In sum, all grand juries, criminal trials, and rearraignment proceedings have been continued past May 1, 2020.  All sentencing hearing have been continued for at least thirty (30) days for the Lubbock, Amarillo, San Angelo, and Abilene Divisions.  Guilty plea proceedings scheduled March 23 – May 1 are continued to a date which is to be reset by the presiding judge.  Guilty pleas without a setting are not to be scheduled.

Magistrate judges will still preside over criminal matters including initial appearances, arraignments, detention hearings, and the issuance of warrants.

Similar orders have been issued by the Southern District of Texas (Houston/Galveston, Brownsville, Corpus Christi, Victoria, Laredo, McAllen); the Eastern District of Texas (Marshall Division) and the Western District of Texas (Alpine, Austin, Del Rio, El Paso, Fort Hood, Midland-Odessa, Pecos, San Antonio, Waco).

Freedom for Inmates during Coronavirus Pandemic: State and Federal

Seeking the freedom for inmates who are awaiting trial will be different, depending upon where they are housed.  Freedom from state jails and prisons will require criminal defense attorneys to follow Texas procedures and the specific court orders that apply to the particular situation.

For those detained in the federal system, motions to reopen federal detention hearings may need to be filed.

Motions to Reopen Federal Detention Hearings

For those incarcerated in the federal system, there is the possibility of filing motions to reopen their federal detention hearings, so they can get released pending trial.

Defense attorneys across the state may consider filing motions requesting the court order the release of their clients from federal detention.  Specifically, the defense request will ask the judge to reconsider the decision to detain the individual based upon COVID-19 dangers.

What should these motions contain?  Judge Keith Ellison of the Southern District of Texas is already allowing reconsideration of detention based upon COVID-19.  Read his Standing Order of March 17, 2020 here.

Consider the guidance found in Judge Ellison’s Order:

• [Ellison’s Order] will apply only to individuals in pretrial detention and only to cases pending before Judge Ellison.
• A detention hearing may be reopened at any time before trial if the judicial officer finds that material information exists that was not known to the detainee at the time of any previous    18 U.S.C.  § 3142(f)(2).
• The conditions that have resulted in the presidential declaration of a National Emergency constitute material information that has not previously been considered by the Court.
• Two of the detention factors to be considered by a judicial officer are (1) the person’s “physical and mental condition” and (2) the nature  and seriousness of the danger to any person  or the community that would  be posed by the detainee’s release.  18 U.S.C. § 3142(g)(3)(A), (4).
• The rights of those who have allegedly been the victims of a detainee must also be upheld. They are entitled (1) to be reasonably protected from the accused, (2) to reasonable notice of any public court proceeding involving the crime or release of the accused,  (3) the right to be reasonably  heard and not excluded from public  court proceedings, (4) the right to be treated with fairness and respect, (5) the right to confer with the attorney  for the government, (6) the right to proceedings that are not subject to unreasonable delay, and (7) the right to be informed of their rights. 18 U.S.C.  3771(b)(l).

COVID-19 Reopen Detention Hearing Procedure for Judge Ellison’s Court

From the Standing Order, Judge Ellison provides steps for any criminal defense attorneys who file motions to reopen a detention hearing based upon the Coronavirus National Emergency:

1. Counsel for the government and the accused must confer to see if they can reach agreement.
2. If a hearing is to be reopened, the government must provide notice to any alleged victim and an opportunity to be heard.
3. Any COVID-19 Motion to Reopen Detention Hearing must be filed in the Court’s electronic filing system.
4. Any COVID-19 Reopen Detention Motion should include a statement as to whether the defendant waives presence at any hearing to be held.
5. Copies of any such COVID-19 Reopen Detention Motion must be served on Probation, the Court’s case manager, and any other parties to the case.

Getting Freedom from Jail Pending Trial Due to COVID-19 Threat

For those who await trial in either state or federal court today, the danger of becoming seriously ill or dying while incarcerated due to Coronavirus exposure is real.  Criminal defense attorneys across the state will be working to try and help clients get their freedom based upon the Coronavirus Pandemic as best they can, working against “Stay at Home” Orders and other unprecedented barriers to their legal practice.

Each day, things change and evolve.  The danger increases for the incarcerated.  Motions for release of the innocent in these circumstances must be considered as a priority, in both the state and federal systems.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, ”Ice Holds, Bail Bonds, And Getting Freed From Jail In Texas.”