The Orleans Justice Center. (Michael Isaac Stein/The Lens)

The Orleans Parish Public Defenders office urged the New Orleans Police Department on Monday to suspend all arrests “unless there is a clear and present danger of imminent physical harm” as a response to the increasing number of cases of the novel coronavirus in New Orleans. In addition, a local group that serves as the public defenders office for juveniles released a letter calling for a decrease in the number of juveniles detained.

“COVID-19 has now reached record levels in New Orleans,” reads a letter from Chief District Defender Derwyn Bunton. The letter goes on to say that jailing people during the crisis carries the potential of putting them in close quarters with others who have been exposed or infected and, should they be released, carries a danger for the community at large.

“As of yesterday, arrests on attachments and nonviolent offenses, particularly simple drug offenses, continued,” the letter said. “People continue to be detained pre-trial because they were too poor to pay for their freedom” through a bond.

But NOPD Chief Shaun Ferguson said that while the department is considering doing some things differently, he will not order the suspension of arrests for entire categories of crimes. 

The letter from the public defenders follows a demand last week from the office that judges order the release of all nonviolent offenders in the city’s jail.

Bunton confirmed today that they were still seeing arrests for low-level offenses today at Municipal Court first appearances — which continue even as the court has otherwise ceased operations — and they had not received a response from the police department as of this afternoon.

He said that the public defender’s office was putting on a “full court press of advocacy trying to get folks out of jail who don’t need to be in there,” including filing bond reductions and requests to have certain pre-trial detainees released. 

While Bunton said the courts have been “increasingly receptive,” he remained concerned by the actions of the NOPD. 

“It seems like everyone is beginning to pull in the same direction,” Bunton said, “trying to reserve jail and detention for those who present the most risk. The only people, the only part of the legal system, that hasn’t responded and from our perspective continues to be business as usual, is the police department.”

At a press conference Monday afternoon, New Orleans Police Department Superintendent Shaun Ferguson addressed the letter, and said the department would not stop making low-level arrests.

“We will treat everything on a case-by-case basis. But we must maintain order,” he said. “Law and order is what this is all about.” 

He said the department may try to use summons’ instead of arresting individuals which would prevent new detainees from entering the jail population.

Group says juvenile incarcerations should be decreased

The Louisiana Center for Children’s Rights (LCCR), which serves as the juvenile public defender in New Orleans, also put out a letter to juvenile justice stakeholders requesting that in order to “stave off a public health emergency” they “immediately and dramatically reduce the number of children who are incarcerated.” 

In the letter, the group recommend that police decline to make arrests for minor disciplinary issues or jail children on any non-violent offenses. In addition, they encouraged judges to “review a list of the children that they have ordered into detention and identify those who may be suitable for release daily.”

The organization not only expressed concerns about the possibility of the spread of COVID-19 within the detention facility, but the harmful impacts current preventative measures may have on children.

“In such a setting, most of what we can do to protect against the spread of the virus is detrimental to children’s well-being,” the letter said. “Facilities are prohibiting visitors, meaning lawyers can’t visit their clients and families can’t visit their children. School and other programming is cancelled. The use of solitary confinement, which is deeply traumatizing for a child, is likely to increase. All of these factors not only put a child’s emotional health at risk, they also jeopardize their long-term rehabilitation.”

‘Nobody has suggested to me that the jail is more dangerous than the street’

Not everyone is worried about the potential spread of coronavirus among the jail population.

“Nobody has suggested to me that the jail is more dangerous than the street,” said Judge Franz Ziblich, who presides over Section L of the New Orleans Criminal District Court. “I mean I haven’t had a doctor come into my court and testify that the jail is more dangerous for coronavirus than the street. To me, that’s speculation. I think the Sheriff’s Office knows what it is that their responsibility is, relative to that, and they are probably being much more diligent with those inmates than those inmates might even be if they were out on their own. I don’t know, I don’t run the jail.”

The jail is currently being run by Compliance Director Darnley Hodge. In 2016, a federal judge overseeing a long-running federal consent decree for the jail, ordered that day-to-day operations be placed in the hands of an appointed compliance director, rather than Marlin Gusman, the elected sheriff. The consent decree was approved in 2013 to address a series of constitutional violations in the jail, including pervasive violence and lack of proper mental health care. 

Across the country, jurisdictions are considering actions to reduce the jail population in response to coronavirus through release of pre-trial detainees and limiting arrests for low-level offenses. 

In Iran, over 70,000 prisoners were temporarily released when coronavirus spread throughout the country. 

The Criminal District Court is closed until April 13, but Ziblich said he will continue to have phone conferences with attorneys, and receive motions via email in an attempt to move cases forward. 

“We’re not going to have any defendants. We’re not going to have any hearings. We’re not going to have any court appearances made by lawyers,” he said. 

Katie Schwartzman at the ACLU said that judges should be proactively reviewing pre-trial defendants in their sections and instituting a “blanket policy” of releasing any defendants who are not a threat to public safety. 

“The risk to people who are incarcerated and to the staff at [the jail] are great if this epidemic reaches the jail,” she said. “So getting as many people out of harm’s way is important.”

This story has been updated throughout the day.

Nicholas Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...