HARRISBURG — Early this morning, the ACLU of Pennsylvania filed an emergency request asking the state Supreme Court to use its “King’s Bench” power to protect public health by ordering county common pleas courts to release some people from county jails, including those who are at high risk of serious illness or death if infected by COVID-19 and those who are held pretrial or on short sentences for minor offenses.
The petition argues that drastically reducing jail populations to allow jails the space to follow CDC-recommended safe social distancing and hygiene practices is the only way to prevent widespread contagion, which will inevitably infect people who are incarcerated, jail staff, and the surrounding communities. Other states’ supreme courts — including in New Jersey, Maine, Montana, South Carolina, and Washington — have issued such orders in recent days to prevent county jails from becoming epicenters in this public health crisis by adhering to guidance issued by the Centers for Disease Control.
“The COVID-19 pandemic is an unprecedented public health crisis in modern American history and requires bold action by the state Supreme Court,” said Reggie Shuford, executive director of the ACLU of Pennsylvania. “The court must act now to release people who are at high risk of contracting COVID-19 and people who are low risk to public safety to avert what otherwise will surely be a public health catastrophe.”
The petition was filed on behalf of the Pennsylvania Prison Society and five people detained in jails around the commonwealth. It is joined by the Public Defender Association.
“We call on Pennsylvania's highest court to do what is necessary to protect the safety of our communities, and make the bold, responsible, and humane step of releasing and refusing to incarcerate people who are in pretrial detention, on probation detainers, and those in medically vulnerable groups,” said Claire Shubik-Richards, executive director of the Pennsylvania Prison Society.
Specifically, the emergency request asks the Supreme Court to order every Court of Common Pleas president judge to limit new jail admissions to the most serious offenses and order the presumptive release of everyone already held on cash bail or for technical and minor-offense probation violations; in a work release program; who are medically vulnerable because they are older or have certain serious health conditions; or who are within three months of completing their minimum sentence.
The requested relief is similar to that ordered by the New Jersey Supreme Court, which created a presumption of release for different categories of people and then gave district attorneys a short time to file individual objections, which would then be considered by county judges.
“This virus respects neither prison walls nor razor wire, which means that infection inside a jail will lead to widespread contagion in the surrounding communities,” said Witold Walczak, legal director for the ACLU of Pennsylvania. “We urge the Pennsylvania Supreme Court to heed public health experts’ warnings and issue an emergency order similar to those of other state supreme courts directing jails to release as many people as safely possible. The Supreme Court’s broad King’s Bench authority is particularly suited to addressing an impending public health calamity like the one facing our jails and nearby communities.”
The petition’s lawyers include Witold Walczak, Nyssa Taylor, Erika Nyborg-Burch, Hayden Nelson-Major, and Ali Szemanski of the ACLU of Pennsylvania; Susan Lin and Jon Feinberg of the Philadelphia-based law firm Kairys, Rudovsky, Messing, Feinberg and Lin; and John Freedman and Sam Shapiro of the Washington D.C.-based law firm Arnold & Porter Kaye Scholer LLP. The Public Defender Association has also signed onto the petition as well. A copy of the emergency request and the declaration of public-health expert Joseph Amon are available here.
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