By Octavio Arturo Dominguez and Brian Livingston

On March 13, Gov. Greg Abbott declared a state of disaster in Texas due to the novel coronavirus (COVID-19) pandemic. Shortly thereafter, defense attorneys across El Paso county began filing motions to reduce bond that warned of the imminent health and safety threat that the pandemic posed to their jailed clients who were unable to practice preventative measures, such as social distancing and good hygiene. Those warnings were ignored.

Today, El Paso is experiencing a marked increase in COVID-19 infections. As of July 14, the county reported 9,953 COVID-19 cases. Just last month we had less than 4,000. 

The criminal justice system has been stalled by the COVID-19 crisis. As part of the efforts to slow the spread of the coronavirus, in person hearings have been severely curtailed and jury trials have been canceled by order of the Texas Supreme Court until at least Sept. 1. While aimed at protecting the public, these good faith efforts fail to protect incarcerated individuals and those whose job it is to watch over them.

Our county jails have experienced a dramatic rise in COVID-19 cases. Prior to June 28, Sheriff Richard Wiles officially maintained that there were only four positive cases. After 40 additional inmates and five detention officers tested positive in late June, the sheriff initiated mass testing and as of July 12, 230 inmate had active positive cases and an additional 354 inmates are in quarantine. Together, these numbers account for more than 25 percent of the daily El Paso jail population. More alarming, the number of confirmed active positive cases is second only to Harris County (318), which has approximately four times the jail population and is experiencing the most widespread community outbreak in the state.

And it’s into this petri dish of rising infections that defendants with active pending cases find themselves.

Pandemic gives prosecutors more leverage

Following arrest, individuals go before a jail magistrate who sets a bond amount that takes into account the nature and circumstances of the charge. Defense attorneys have argued in bond hearings that the safety of our clients is an important factor that should be taken into consideration. Judges, however, have routinely downplayed these risks by declaring that the sheriff has implemented effective protocols that ensure the safety of the inmates in their care. It is now abundantly clear that the purported protocols were either not effective, not followed, or both.

If defendants post the bond amount, they are released from jail. If they cannot, they must remain in jail until either the case is dismissed, the defendant accepts a plea bargain, or the case is tried.

The current delay of jury trials is problematic for incarcerated defendants because prosecutors often do not make fair plea offers until they are faced with having to try a case. Normally, when a prosecutor’s offer is unreasonable, defendants can take a case to trial and, if convicted, ask a jury of El Pasoans to decide an appropriate punishment.

When timely jury trials are unavailable, prosecutors gain substantial leverage in plea negotiations.

Notably, although it is prosecutors and judges who have the power to reduce the jail population, they themselves do not have to face the heightened risks that result from their decisions. Perhaps that is why the local courts and prosecutors continue to largely operate as if it’s business as usual.

Jail population reaching new highs for some groups

We’ve reached this conclusion based on our personal experiences and our analysis of the publicly available data from the Texas Commission on Jail Standards. Our review of the data provided by El Paso County reveals that the jail population has experienced a steady decline in the past five months, from a high of 2,181 in March, to a low of 1,729 in May. The most recent report, dated July 1, reflects that the total jail population has increased again to 2,015.

The decrease in the jail population during the early stages of the crisis is almost completely attributable to a reduction of federal inmates. In March, there were 720 federal inmates. By June that number had decreased to 389.

In sharp contrast, the jail population for individuals held on state charges initially decreased before peaking at 1,562. Over a thousand of these individuals are held pretrial, meaning they are presumed innocent and have not been convicted.

Disturbingly, individuals held pretrial on a felony charge now stands at a 25-year high: 998 incarcerated as of July 1. Incomprehensibly, as the risk of infection increases, more legally innocent individuals are waiting in jail than ever before.

The infections among inmates have heightened the risk to the entire community. A recent study focused on the Cook County Jail in Illinois concluded that jail turnover of individuals was responsible for one in six documented COVID-19 cases in Chicago.

And that’s because inmates are not the only individuals who bear the risks associated with the outbreak at the local jails. Every day, hundreds of detention officers face the possibility of a potentially deadly infection. Currently, 44 detention officers have active positive COVID-19 cases and another 11 are currently in quarantine.

Some steps are working

Our coworkers at the El Paso County Public Defender’s Office are also exposed daily to these dangers. The office employs a dedicated team of staff, social workers, investigators, and attorneys who have devoted their careers to serving their community. Collectively, we spend hundreds of hours per month inside the secured areas of the jail.

Private defense lawyers, many of whom are already suffering from the economic fallout of the pandemic, also face the same stresses that comes with exposure to the dangerous jail environment.

Officials have taken some actions to address the pressing issue. The jail magistrates and county court judges should be commended for dramatically reducing the number of individuals incarcerated solely on pending misdemeanors. Officials in court administration and the sheriff should be recognized for their work in getting courts and jail facilities connected to allow video conferencing for hearings.

And thankfully, there have not been any reported deaths due to the virus. But the situation is certain to get worse before it gets better, considering the looming staffing problems that the Sheriff’s Office faces as more detention officers are infected or forced into quarantine.

Here’s what we should to to better protect El Paso

We must work now to dramatically reduce the jail population and ensure proper safety measures are taken for the people who are left inside before the pandemic worsens. We offer the following recommendations to help manage the ongoing crisis while balancing the safety of the community:

• Jury trials and contested hearings must resume as soon as practicable, but not without assuring an environment that respects the rights of the defendant and the safety of court staff, the attorneys, witnesses and members of the jury. If jury trials must be postponed until 2021 or beyond to guarantee such an environment, so be it. The safety of the community and rights of the defendants must not be sacrificed for the sake of expediency.
• Law enforcement must stop the flow of people who stay in jail for one or two days before being released on bond. For the next 90 days, law enforcement should adopt a policy of cite and release and limit the number of arrests for any crimes that do not pose a significant safety risk to a specific person or persons, including crimes such as criminal trespass, drug possession and thefts.
• Anyone held in jail solely on non-violent misdemeanor or state jail offenses should be released.
• Anyone held on a “technical” probation violation such as failing to report to their probation officer should be released.
• There should be an immediate review of cases involving anyone who is elderly or medically vulnerable, and thus more likely to die from COVID-19, to see if they are good candidates for release.

Any one of these recommendations alone would go a long way towards reducing the risk of exposure for everyone, and collectively these measures would put El Paso in the best position to combat the pandemic throughout our community while still respecting the rights of the accused and the safety of the community.

We all want what’s best for our community. It’s time to give our community its best shot at getting through this crisis together.

Octavio Arturo Dominguez and Brian Livingston are deputy public defenders at the Office of the El Paso County Public Defender. The views and opinions expressed are their own and do not reflect any official policy or opinion of their employer, El Paso County or the Office of the El Paso County Public Defender.