GateHouse Media
April 17, 2020
Nearly 140 prison employees and staff of the Texas
Department of Criminal Justice and about 285 inmates have tested positive for
COVID-19, and two inmates have died as of April 16, according to KWTX-TV in
Waco, Texas.
This week, the Department of Criminal Justice sent letters
to county sheriffs throughout the state announcing that state correctional
facilities will temporarily stop taking inmates from county jails.
All of this in the shadow of Texas Governor Greg Abbott’s
executive order thwarting judges from releasing pretrial detainees who cannot
afford bail. Some sheriffs, prosecutors and judges had pledged to reduce the
population of local jails in order to protect inmates and staff and help
“flatten the curve.”
According to the Dallas Morning News, Abbott’s sweeping
executive order blocks judges from releasing indigent defendants on
non-monetary personal bonds. The no-cost bonds often carry other conditions of
release - like home confinement, electronic monitoring or day reporting.
In pure Texas style, the state’s Attorney General Ken
Paxton, who, according to the Texas Observer, is himself out of jail on
personal bond for three pending felony charges, has intervened in support of
Governor Abbott in several lawsuits challenging the governor’s executive order.
Many medical and public health experts have repeatedly
emphasized that to mitigate the threat of COVID-19 spread in jails; local
officials must do everything possible to reduce the jail population.
Prisons and jails make it virtually impossible to social distance;
quarantine people who have been exposed; or isolate those who are ill. Prisons
and jails are unsanitary, soap is at a premium and hand sanitizer is banned.
Abbott’s order highlights a wider problem. The incarceration
of the poor. If a defendant has money for bail, no matter the underlying
charges or the level of risk, he sleeps in his own bed, goes to work every day
and walks the streets awaiting trial. If a person accused of a crime is without
money she sits in jail until trial - and now risks exposure to a deadly virus.
The problem in Texas is as much about class and race as it
is about protecting Texans from potential violent criminals as Abbott stressed
when he put the order in place.
Abbott’s order suspends criminal procedure and all other
relevant statutes and rules “to preclude the release on personal bond of any
person previously convicted of a crime that involves physical violence or the
threat of physical violence, or of any person currently arrested for such a
crime that is supported by probable cause.”
At least four Texas prosecutors, including Dallas District
Attorney John Creuzot, challenged Abbott’s executive order. The suit alleges,
“It has become increasingly clear that relying on money bail, as opposed to the
case-by-case decisions employed by every judge in this state, does not promote
public safety and instead makes our communities less safe.”
In addition, 13 Harris County judges filed an injunction
seeking to stop the governor from carrying out his order. The judges argued
that the governor is attempting to suspend long standing procedural rules and
“in so doing reaches beyond the statutory and constitutional authority of the
governor.”
The injunction was granted by the lower court and then
overturned by the Texas Supreme Court.
The suspension of criminal procedure has hamstrung judges
and local officials in their efforts to address the needs of vulnerable inmates
during this unprecedented health crisis. The injunction complaint alleged the
governor’s action “threatens to explode jail populations during this deadly
pandemic.”
Travis County District Attorney Margaret Moore recently
tweeted, “We will not let the governor’s executive order limiting the
availability of personal bond for certain defendants to impede our highly
successful policies here that have reduced our jail population dramatically
over the last month.“
This issue is about a lot more than crime and punishment - it is about life and death inside, and outside, prison walls.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
This issue is about a lot more than crime and punishment - it is about life and death inside, and outside, prison walls.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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