Stakeholders in Md. Legal System Tell Lawmakers What’s Working — and What Isn’t — During COVID-19

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Questions abound surrounding procedure within Maryland’s courts and correctional system since the COVID-19 pandemic ascended upon the state in early March.

Two legislative committees heard from an array of stakeholders in the legal and criminal justice system this week who outlined what’s changed, what’s working — and what isn’t.

Robert L. Green, the secretary of the Department of Public Safety and Correctional Services, told lawmakers that the agency is attempting to follow guidance from federal and state health departments when it comes to stemming the spread of COVID-19 in state prisons and other correctional facilities. 

“We’ve kept in absolute lock-step with CDC and [Maryland Department of Health] guidelines to protect employees,” Green said.

But Patrick Moran, president of Maryland AFSCME Local 3, which represents correctional officers and other state employees, warned that state prisons have become a “working petri dish” — and that the state is not doing enough to protect workers and inmates.

As of its last report released Monday, the Department of Public Safety and Correctional Services confirmed 244 cases across its facilities — 70% of which were found in correctional officers. 

The department secretary said that 101 of the confirmed cases have recovered, including 78 officers and 17 inmates.

Members of the House Judiciary Committee pressed Green about protocol as it relates to infected inmates.

The secretary explained that when an inmate falls ill, he is given a surgical mask and is isolated for up to 14 days. 

Should an incarcerated individual need to be moved to a hospital for care, families are not contacted by the department for security purposes, Green said, but hospitals are given next of kin contacts “should that information be needed.” 

As of Wednesday, 13 individuals were being hospitalized for COVID-19 across the department. 

Four inmates have died of coronavirus in the state agency’s custody. Three were men in their 60s with underlying health conditions.

Two deaths were reported out of Jessup Correctional Institution in April. The department’s facility in Jessup has consistently had the highest number of confirmed cases.

The third death was reported by department officials Thursday afternoon. The man was held at Roxbury Correctional Institution in Hagerstown.

A fourth death was reported Friday. The inmate was a man in his 50s held at Dorsey Run Correctional Facility.

Gov. Lawrence J. Hogan Jr (R) signed an executive order allowing for the release of inmates aged 60 and older and those within four months of their scheduled release date who do not pose an immediate threat to public safety. Days after the issuance of Hogan’s order, the Department of Public Safety and Correctional Services revealed that it had quietly released more than 2,000 inmates.

Green told lawmakers that 3,399 inmates have been released from department custody since March 1. This includes 1,207 individuals who were held in pretrial services in Baltimore City.

He also said that the department has been utilizing home detention services made available to them under Maryland law, expanding the use of home detention programs by up to 40%. 

Green said he has waived the cost of GPS monitoring for home detention during the public health crisis. 

The department secretary told lawmakers that inmates are filtered to his agency first through local law enforcement.

Some prosecutors have gone to lengths to diminish their local inmate populations.

Montgomery County State’s Attorney John J. McCarthy (D) told the Senate Judicial Proceedings Committee Thursday that the inmate population across Montgomery County jails has been reduced by over 150 inmates since March 1. 

As of Wednesday, there were 549 people spread among all three of the county’s detention facilities. McCarthy said  those who remain are being held in the county’s custody for “very serious crimes.”

“When we are looking at these issues, and I think I speak for all the state’s attorneys, when we approach the COVID-19 crisis, we are considering not only the impact on prisoners, but also guards and staff, because they are equally at risk from, from the crisis as well,” McCarthy said.

The state’s attorney said that having pretrial units makes all the difference when thinning out jail populations. 

“We’re a very vibrant pretrial unit,” said McCarthy.

As of Wednesday, 843 people were being supervised on pretrial release in Montgomery County.

Not every Maryland jurisdiction has the ability to offer pretrial services. Baltimore County State’s Attorney Scott D. Shellenberger (D) said the pandemic may be a golden opportunity for legislators to consider extending programs across the state.

“From a legislative point of view, perhaps we should start talking about maybe having a statewide system for pretrial to help those counties who don’t have that kind of system, and don’t have all the options for letting folks out,” Shellenberger said to members of the Senate Judicial Proceedings Committee.

Shellenberger said the population at the Baltimore County Department of Corrections has dropped by around 400 prisoners since the beginning of the public health crisis.

‘A … working Petri dish”

Green reported that since the pandemic began to infiltrate the state, the Public Safety and Correctional Services department has hired 103 new employees, including 63 correctional officers.

Since March 14, staff members in correctional facilities have had their temperatures checked at the door of each facility, and those who work on the booking floor of the Baltimore Central Booking and Intake Center have been supplied with full protective gear including face shields, masks, gloves and gowns. 

Green said that the department began providing N-95 masks to all corrections staff two weeks ago. 

Moran, the union leader, told members of the House Judiciary Committee Thursday about problems in the prisons that have been reported by the 6,000 members represented by his union.

Moran said access to N-95 masks and other essential personal protective equipment remain limited.

“Our members are going into the facility each day where there is no opportunities for social distancing, allowing the virus to spread rapidly with quite a force,” he said.

Moran told the House Judiciary Committee that on April 2, union leadership had a virtual meeting with Green to address pressing issues including the availability of personal protective equipment and the necessity to have access to the department’s written emergency plans. 

Moran noted that at that point, the use of masks by corrections officers was not mandatory. 

He said that “only this week” have N-95 masks been put to use, qualifying that not every facility has access to them yet. Moran also suggested that only masks for employees who are transporting or directly overseeing infected individuals are being fit tested to ensure that they work properly.

“It defeats the purpose of the mask if you’re not being fit tested for the mask — if it doesn’t fit properly,” he said.

Moran asserted that “very few, if any” written plans have been shared with staff across the state that detail actions to be taken if there is a viral outbreak at any particular site.

“If you’re asking our members to walk into an already hazardous situation, and then you compound it with a thing such as the virus, a lethal virus, at that, then, you know, they’re within the rights to demand a plan, and a written plan that they can see and review and potentially critique or add … some points to,” Moran explained to the committee. 

Last month, Maryland Matters submitted a public records request to access these plans. The department returned a document signed by Green stating that, consistent with an executive order signed by Hogan on March 12, all legal time restrictions on public records requests have been suspended until the state of emergency is lifted.

At a State House news conference Wednesday, Hogan announced that the state is expanding testing capability for health care workers in its correctional facilities.

Moran emphasized the need for increased testing across all of these facilities for staff and incarcerated individuals alike.

“Our folks are working in a … working petri dish, as it were, and you’re only going to compound that problem if you’re not consistently testing folks.” Moran said. 

He noted the 500,000 tests that the governor secured from South Korea in April, suggesting that testing individuals who interact with the Department of Public Safety and Correctional Services would use just a fraction of the stockpile.

“You’re looking at approximately 18,000 inmates and about 6,000 staff,” Moran said. “That would be the smart thing to do. That would be the intelligent thing to do. That would be the, the moral thing to do in order to stem the virus from spreading within the correctional facilities.”

Green said staff members are currently accessing testing through their personal health care providers and that inmates are being “symptomatically tested and screened.” 

Green added that some groups of inmates are being tested regardless of the presence of symptoms, and that he has been in talks with the Department of Health to determine a method of expanding testing to inmates in highly impacted facilities. 

Moran said that he has personally spoken to Green about the need for accessible plans and enhanced personal protective equipment. He conceded that the Department of Public Safety and Correctional Services is “leading the way” when compared to other state agencies with workers represented by his union.

“At the beginning of the shutdown, there was very little transparency in terms of where it was blowing up and who it was blowing up amongst. And you know, it was hidden until they couldn’t hide it anymore,” he told members of the House Judiciary Committee. “You know, when you have a mobile sanitation unit from some company coming in and hosing down and misting and fogging, you’ve got a problem. And so they finally admitted it. And I have to say they’ve been the most transparent agency of all the agencies within the state.”

Court may soon be in session

Mary Ellen Barbera, chief judge of the Maryland Court of Appeals, briefed Senate Judicial Proceedings on how the Maryland judiciary is continuing to function under the pandemic.

In mid-March, Barbera issued orders that, for the most part, have kept courts closed to the public. Emergency hearings, including bail reviews and peace orders, are still being heard. 

Additionally, she provided guidance to lower court judges last month, directing them to consider releasing portions of adult and juvenile populations held in detention facilities across the state.

State Public Defender Paul DeWolfe told the Senate panel that since Barbera issued her administrative order, jail populations statewide have decreased by nearly 8%. 

Barbera has also authorized the expanded use of virtual proceedings. 

During the pandemic, courts across the state have heard plea agreements, sentencing hearings, bond reviews, some divorce cases and drug and mental health dockets virtually.

The chief judge said that virtual court proceedings will be folded into regular procedures down the line.

Judge Laura Ripken, chairwoman of the Conference of Circuit Judges, told lawmakers that attorneys across the state have continued to file documents via MDEC — the state’s virtual filing system. 

A handful of counties have yet to move to electronic filing, and continue to rely on clerks to collect documents at drop boxes located at courthouses. Ripken said that all courts are screening people as they enter and are requiring on-site workers to wear masks.

Barbera has postponed the reopening of the courts multiple times since their initial closure on March 12.

She said that courts are poised to reopen June 8, but she plans to continue to account for public safety by phasing in services, implementing technology and social distancing measures and “rethinking current business practices.”

“Even if that day holds, I can assure you this does not mean that Monday, June 8, will be business as usual for the Maryland judiciary,” said Barbera.

The District Court of Maryland’s chief judge, John P. Morrissey said that courthouses across the state are mapping their facilities to determine their appropriate capacities to comply with social distancing guidelines, adding that he has been working to ensure that personal protective equipment is available when courts begin to reopen. 

Sen. Susan Lee (D-Montgomery) asked the judges how they plan to handle the perpetually stacking dockets set for the first few days that courts reopen, referencing protective orders, specifically.

Morrissey said that each protective order has been given a “placeholder date.”

“We envision in reopening of staggering those dates,” he said. “We couldn’t possibly hold all those dates on the first date that we were opening.”

Sen. Charles E. Sydnor III (D-Baltimore County) asked about the public’s ability to attend trials as the courts begin to hear cases in person.

Ripken said that jury trials are not poised to be heard until at least six weeks after courts initially reopen.

“The right of access to people to come in and watch court proceedings is of paramount importance,” Morrissey said, conceding that holding virtual hearings impedes the public’s ability to participate.

Morrissey said that judges are currently working to consider ways to allow people to access court proceedings remotely.

Barbera said that next week the Court of Appeals will hold remote oral arguments that will be able to be streamed by the public next week.

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