I arrived at the Harris County Public Defender’s Office before 7 a.m. on Friday, March 13. The calls for action to stop the spread of COVID-19 had been building across the country all week, and it was becoming real to people in Houston. The night before, Houston ISD had finally announced school closures, and the Juvenile Justice Center was shut down after someone there had been exposed to the virus. But the courthouse was still open.
So while much of the country worried about toilet paper, soap, and hand sanitizer, public defenders, advocates, and jail personnel braced for the crisis looming in the criminal justice system.
Like public defenders around the country, I made a list of all of my clients in custody and spent that Friday morning running to as many courts as I could. My goal was to advocate for lowered bonds so my clients could hunker down at home with their families while they awaited trial, rather than risk infection in our overcrowded jails. It has always struck me as cruel to decide whether someone sits in jail or lives free before their day in court based on their ability to pay. That cruelty is unfathomable now.
Many judges were proactive. Not only did they lower bonds when asked, but some made their own lists of pregnant women and those accused of low-level or non-violent felonies in their court, granting personal bonds on those cases.
I will always remember which prosecutors stood by quietly, unopposed to decreased bonds, and which argued vehemently against any bond reduction, even knowing that to stay in custody could amount to a death sentence. I cannot forget the prosecutor who told me and other defense attorneys not to use the hand sanitizer placed on the courtroom table—that it was for prosecutors only.
The next week, as many people across the state began working from home, the courthouse remained open. There would be no more jury calls in March and clients out on bond had their cases reset, but as public defenders, we still had harrowing work ahead of us. That Monday morning, I had a client on the docket still in custody—my absence would guarantee that person an extra month or more sitting in the county jail. I took the stairs from my office to try to avoid the crowded elevators, but when I got to the courtroom I was confronted with the laughable impossibility of social distancing in a courtroom.
To talk to the prosecutor about my case, I needed to stand about a foot from him. When I got in line to approach the judge with several other defense attorneys, we were spaced barely a foot apart. At the bench, I was 2 feet from the prosecutor, maybe 4 feet from the judge. A bailiff stood nearby, and court staff lined the opposite wall, elbow-to-elbow at their workstations. When I talked to my client in the holdover cell behind the courtroom, we were separated by glass. The client, however, was stuck inside a 12-by-6 foot concrete cell with 20 other people. Though there is a toilet in each holdover cell, there is no soap. The courthouse was a public health nightmare.
On Thursday, March 19, prosecutors were told to evacuate the courthouse and not return to the DA’s office after an assistant district attorney was exposed to COVID-19. Defendants on bond have had their court dates set back several months, and while final decisions are still being made, it seems likely that all court proceedings (including cases involving defendants in custody) will soon be remote. Jury trials have been canceled until at least May.
Canceling jury service may be the only rational decision from a public health perspective. But it also means that people who are presumed innocent and awaiting trial will continue to sit in crowded jails—breeding grounds for viruses and infection—because they are too poor to bond out. The average cell block in the Harris County Jail houses 24 prisoners, with bunk beds spaced two feet apart. The “tank” shares three toilets and two showers. Social distancing is impossible when the only space to call your own is your bunk a mere two feet from someone else. Their constitutional rights to a speedy trial are put on hold, their physical safety is seriously endangered, and there is no end in sight.
When Hurricane Harvey shuttered the courthouse for about a month, it created a backlog of trials that we still have not recovered from. Worse, it led to a system where judges simply offload older in-custody cases to “Impact Court,” where retired judges (many of whom lost their last elections) preside over trials. These judges, who were not chosen by the people of Harris County (and some have even been disciplined by the State Commission on Judicial Conduct), have wide discretion over the trials of poor people in custody. The effects of Covid-19 are likely to be much worse than Harvey. For a felony trial, 65 potential jurors sit shoulder-to-shoulder in a small courtroom for hours during jury selection. It seems unlikely that this practice will be CDC-approved for a very long time.
If you are accused of a crime and can afford to bond out, you can spend this time supporting your family and, if you’re lucky, staying home, where soap, hand sanitizer, toilet paper, and food are available, even if in short supply. If you’re too poor to post bond, you’ll wait for months for a delayed trial in a crowded cellblock, where soap and toilet paper are rationed and hand sanitizer is considered contraband.
On Sunday, March 29, the Harris County Jail announced that a prisoner had tested positive for COVID-19 and that 30 other inmates had symptoms consistent with the virus. The jail estimates that 500 inmates have potentially been exposed.
We already know what will happen next. The rate of COVID-19 infection at Rikers Island in New York City is 75 times the rate of infection in the United States, and more than 7.5 times the rate of infection in the rest of New York City. More than 8,000 people are locked up in the Harris County Jail, and Sheriff Ed Gonzalez has warned for weeks that an outbreak in the jail will be devastating.
COVID-19 lays bare the fundamental inequalities that a cash bond system creates, and highlights the unsafe conditions our jails and prisons have designed. For many of my clients sitting in jail right now, just $500 or $1,000 would get them home with their families. They have bonds set, so the reason they are sitting in jail is not because they are a risk to public safety, but because they lack the cash on hand. COVID-19 may not discriminate, but our criminal justice system always has—and in a pandemic, the poor could pay with their lives.