Delaware’s chief defender urges state to release some prisoners to prevent COVID-19 spread

Delaware’s Chief Public Defender Brendon O’Neill is urging officials to release some people in state prisons as part of its response to the coronavirus pandemic.

Those who are near the end of their sentences or with serious health issues should be released, he said, to help reduce the risk of spreading the virus among a closely confined population. So far, no one incarcerated in Delaware prisons has tested positive for COVID-19. Two staff members at two different juvenile detention facilities have tested positive for the virus.

“The goal is to identify all those people we can get out of incarceration and back into the community without risking anything to the community, whether that’s the public safety of not releasing violent people in the community or the concern about people coming back in with the virus and spreading it when they get out,” O’Neill said.

Several other states and jurisdictions are releasing low-level offenders during the pandemic, including New Jersey, which is temporarily releasing up to 1,000 people in county jails by order of Chief Justice Stuart Rabner. Pennsylvania corrections officials said Wednesday they are considering releasing hundreds of people sitting in state prisons, pending legislation authorizing the move, after two prisoners in Montgomery County tested positive for COVID-19.

Last week, Delaware Attorney General Kathy Jennings said there’s no determination if that will happen in Delaware, where there are more than 4,000 incarcerated people.

The ACLU also has written to Gov. John Carney, asking him to release prisoners who are at risk of suffering complications from becoming ill with COVID-19, such as those over 60 or those who have underlying health conditions, if their sentence ends in the next two years. The letter also urges the governor to release all those whose sentences end within the next six months.

Both Jennings and O’Neill point to a code in Delaware law that allows the DOC to petition the Board of Parole to modify prisoners’ sentences.

According to that code, the courts can modify a person’s sentence if the DOC can prove the “release of the defendant shall not constitute a substantial risk to the community or the defendant’s own self.”

Under the law, good cause for a sentence modification includes rehabilitation, serious medical illness or infirmity and prison overcrowding. Those reasons for parole aren’t exclusive, however, said Romie Griesmer, supervising attorney and lecturer of law at Widener University Delaware Law School.

“People in prison are more vulnerable to an infectious disease, so that’s the reason we’re all talking about this,” Griesmer said. “If this were to enter our prison system, it would be fast in terms of spreading, and we know the dangers involved.”

Only inmates with sentences of more than a year are eligible for the DOC petitions.

The process involves a hearing held by the Board of Parole, followed by a recommendation to the court. The court makes the final ruling after getting input from the state Attorney General’s office. Griesmer said she doesn’t know how long the process typically takes, but it’s not speedy.

However, she said it could be expedited during an emergency like a pandemic if all parties involved work together to come to an agreement.

“Those decisions are supposed to be made whether there’s good cause for release — in this circumstance it would be COVID-19 as the reason,” she said. “And sometimes it might be because a prisoner doesn’t have much time left, or it could be that they are in ill health or it could be because they’re elderly. And the other component of that has to be that it’s not a risk to the community in terms of releasing this offender.”

She adds that the courts are the ultimate decider in that process.

While the Delaware Department of Correction has not publicly said whether it would support releasing prisoners as part of its COVID-19 response, it has provided information on its action plan to protect incarcerated people and staff, which includes enhanced screenings, limiting access to facilities and extra cleanings. The prison is also isolating newcomers for 14 days upon arrival. As of Monday, five people had tested negative for the virus.

Griesmer said Delaware’s constitution also allows the governor to issue pardons, commutations and reprievals. However, those processes also require a vote by the Board of Pardons. The board also can take into account input from the Attorney General’s office.

Griesmer said it’s less likely this method would be used to release people during the pandemic, however, because the governor would still defer to the courts to make a decision.

For those whose sentences are less than a year and pre-trial detainees, modifying a sentence is handled through the sentencing court. Again, Griesmer said the process can be sped up if attorneys on both sides agree.

Last week, Jennings said the state was taking measures to reduce pre-trial detainees, including lowering bail amounts and stopping arrest warrants for failure to pay a court fine.

O’Neill, whose office represents about 47,000 cases a year, said defense attorneys are filing bail motions for clients in custody while awaiting trial, and the court has been responsive to many of them.

“To their credit, the DOJ and the courts have been more flexible than they have in the past given all the circumstances, including the potential for a person in custody to catch the virus and come down with COVID19,” he said. “It’s caused the system to rethink some of the reasons why people are held before trial.

“I think it gives us an opportunity to reevaluate why we’re keeping so many people in custody when they’re presumed to be innocent. All the pretrial detainees have not been proven guilty, they are presumed innocent, and my opinion is more should be released.”