How well is the state justice and corrections system protecting inmates and detainees from COVID-19?

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MANCHESTER, NH — While a handful of COVID-19 outbreaks in long-term care facilities have cropped up in parts of New Hampshire, there still have not been any outbreaks in the state’s prisons or jails, but officials and advocates have been working to make sure appropriate steps are taken to protect the state’s inmate and detainee populations should the virus breach the walls of a facility. 

Such a breach may have already happened as corrections officers test positive, though there are reportedly no sick inmates yet.

⇒ RELATED STORY: 11 Staffers at NH Department of Corrections Test Positive for COVID-19

As of Friday, the New Hampshire Department of Corrections reports there have been a total of 11 staff members who tested positive with the virus, 7 staff at the NH State Prison for Men in Concord, one who worked as recently as Monday, and others as recently as last Thursday and Friday. One staff member at the State Prison for Women also tested positive, as well as two parole field officers, according to state officials. 

While six inmates living in the state’s three prisons have been tested, none of those tests came back positive. 

State prisons have quarantine procedures ready to implement should any resident test positive, with frequent drills for staffers so they’re prepared to respond, policies have already been put in place to ensure social distancing, frequent screening is done for staff, facilities are being sanitized and any residents with symptoms are getting tested, officials say.

But the American Civil Liberties Union of New Hampshire and the New Hampshire Association of Criminal Defense Lawyers (NHACDL) are pushing for additional steps to release prisoners who are older or have other medical conditions that put them at increased risk should an outbreak occur.

“I’m under no illusions that everyone should be released, nor do I think they should be,” said Robin Melone, the president of the NHACDL.

But she said there are steps that can be taken to vet individuals on a case by case basis to make sure a balance can be struck between protecting the prisoners and protecting the public. 

Initially, county jails have taken the lead, Melone said, by releasing close to 100 people statewide. Prosecutors are agreeing in many cases to allow nonviolent offenders with little time left to their sentences, to get out early, she said. 

She’s also seen cases where law enforcement has taken steps to reduce arrests, in favor of issuing summonses, where appropriate, and pre-trial detainees are being quickly bailed out.

Recent bail reform efforts have proven helpful in keeping the jail populations low to begin with, according to ACLU-NH Political Director Jeanne Hruska.

“If anything, it’s brought down jail populations over the years, which, heading into COVID-19 is a good thing,” Hruska said.

The ACLU championed bail reform in an effort to protect vulnerable populations who languished in jails without being convicted of a crime due to economic circumstance, but it has been controversial among law enforcement officers who often decried the release of repeat offenders who, they say, would predictably re-offend soon after being arrested and released.

DOC spokesperson Laura Montenegro said the state’s prison population was already trending downward, having shown a 9 percent decrease over the past six years, from an average population of 2,710 in 2015 to 2,469 in 2020.

According to monthly demographics reports, there are currently 2,586 inmates living in state prisons, of which 279 are aged 60 years or older.

But Hruska said the fewer people in jail means it’s less likely a widespread outbreak will occur behind jail walls, which also protects the larger community. Public health for jails means public health for all of us, she said.

“It is a risk to the communities around that jail, around that prison,” Hruska said.

But there’s still more that needs to be done, Melone said. 

“Nobody has been released from the state prison, which is troubling and concerning,” Melone said.

She’s not sure anyone in state prison has even been submitted for release yet, though residents may be submitted for medical parole under certain circumstances. 

Montenegro said the DOC is engaged in the normal review of administrative home confinement applications, but no medical paroles have been approved since the start of the COVID-19 pandemic.

“I think we do need to be proactive,” Melone said. “There is nothing that the prisons and jails can do to make sure the virus does not get behind their walls.”

Even in cases where the crimes they were convicted for were violent or heinous, Melone said there are many who have grown old behind bars and their criminal behavior in the past does not define who they are today. Melone said judges and county attorneys should look at other factors, such as the inmate’s history in the institution and the steps they’ve taken toward rehabilitation.

Jails have had more latitude to make decisions about its population, Melone said, largely because the superintendents, unlike county attorneys, are not elected officials and do not answer to voters, and don’t come under fire the same way judges do when ruling on high-profile cases. 

“The facilities themselves are removed from that and they have some cover,” she said.

So far, they’ve received information from each county jail outlining their protection protocols. 

Though no actual instances of institutions treating inmates poorly or failing to provide resources were noticed, advocates have had many concerns from the start of the pandemic, such as a potential abuse of prolonged lockdowns to the accessibility of hygiene products and the ability of detainees to freely wash their hands with soap and hot water. It was also unclear at first if the kind of non-alcoholic sanitizer on hand will be effective against COVID-19, since alcohol-based sanitizer isn’t allowed in jails and prison for fear of abuse, but Melone said she has since been assured it is.

Melone said DOC and the jails have proven forthcoming about broad plans and she’s encouraged by what she’s seen, but there’s still a lot they don’t know about specific actions they’re taking.

“The information that we’re struggling to get is what’s actually happening inside the facilities,” Melone said.

While Melone says she’s “heartened” by the leadership of DOC Commissioner Helen Hanks, county jail superintendents, and even some county attorneys who despite their adversarial relationship to defense attorneys, have cooperated with them during the COVID-19 crisis in many cases, she said she would have liked to have seen more leadership from the courts.

The ACLU-NH and the NHACDL sent a letter on March 31 to the Administrative Office of the Courts asking the state justice system to issue broad guidelines to follow regarding the release of prisoners, arguing it would ensure consistency as cases come up for review, and potentially insulate judges from political blowback for controversial rulings.

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While the court’s General Counsel Mary Ann Dempsey responded in an April 2 letter that many of the advocates’ recommendations have already been implemented, there were some the courts did not have the authority to do, such as the suspension of all probation and pretrial conditions, reconsider bail orders for all detained pretrial defendants, direct jails to release inmates or striking the provisions of sentencing orders.

Still, Dempsey said in an emailed statement Friday that release requests are being prioritized and handled on a case-by-case basis.

“The Judicial Branch has responded to the public health crisis by promptly hearing requests for the early release of detainees or for release pending trial, and in each case the judge will determine whether early release is appropriate considering all necessary factors, including public safety,” Dempsey said.

Defense attorneys in Massachusetts filed litigation in the Massachusetts Supreme Judicial Court to try to secure releases for inmates there, and the court ruled on April 3 that pretrial detainees who are not charged with certain violent offenses, and others held on technical parole violations are eligible for release hearings. The ruling did not affect any sentenced inmates.

While litigation in this case was successful at getting the Massachusetts courts to issue a blanket guidance, Melone said they are not planning on following that route in New Hampshire. 

For now, Melone said the NHACDL will issue amicus briefs or memos in support of individual cases as they come before judges.

Pretrial detainees are seen as low-hanging fruit as they are easier for lawyers to petition for hearings, and often less controversial for judges to grant release. But releasing committed inmates in state prison will likely be more difficult.

Melone said the process of releasing such an individual is the exclusive purview of the DOC. If the prisons don’t submit any individuals for release, lawyers will have a more difficult time bringing the matter to court. 

One method Melone said hasn’t been used yet, but will be considered if the process hits a wall, is to file a habeas corpus petition alleging a constitutional violation because of the risk to the individual.

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Ryan Lessard

Ryan Lessard is a freelance reporter.