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

The Orleans Parish Public Defenders on Wednesday filed an emergency habeas petition to all the Orleans Parish Criminal District Court judges for the release of all “vulnerable and low-risk” inmates from custody in response to the threat of the coronavirus. 

And on Thursday, Orleans Parish Sheriff Marlin Gusman joined growing calls to release additional inmates in a letter to Judge Robin Pittman, citing concerns about spreading the virus in the jail.

The public defenders’ motion urges the immediate release of inmates who fall into the following categories:

  • All inmates who have risk factors such as age or underlying health conditions that make them more susceptible to serious health consequences from COVID-19
  • All inmates presently held on misdemeanor charges
  • All inmates presently held on felony charges that are not crimes of violence or sex charges
  • All inmates held on just probation or parole detainers, or probation or parole detainers related to minor, nonviolent charges
  • And all inmates serving a sentence who are within 30 days of their release dates

The petition cites evidence from public health experts that jails are incubators for infectious disease and that an outbreak in the jail would not only be a threat to the population inside but to the city as a whole. 

“This motion is being filed on an emergency basis to the en banc out of the fear that catastrophic consequences will result without immediate and decisive action on the part of the Bench as a whole,” it reads. “National and local and health experts agree that no detention facility can protect against an outbreak of COVID-19 that will quickly overwhelm the capacity of both the jail and the city’s medical infrastructure. The already predicted shortage of hospital beds and intubators at local hospitals will be dramatically exacerbated if COVID-19 is allowed to spread throughout the Orleans Justice Center.” 

The motion also points to reports this week of jail staff and recent inmates testing positive for coronavirus. 

On Wednesday, the jail’s compliance director Darnley Hodge issued a memo that said five staff members of the Orleans Parish Sheriff’s Office had tested positive for the virus. Two have tested negative, and 13 are awaiting results. Four employees of the jail’s medical provider, Wellpath, have also tested positive. Ten are awaiting results.  One “former inmate” has also tested positive, according to the memo, “and is in stable condition at the hospital.”

Three other inmate tests had been performed by the time the Wednesday memo was sent. The results were pending. And four were set to be tested Wednesday.

Last week the Sheriff’s Office released 23 inmates in response to an emergency en banc order from 2019. 

The court issued a new en banc order Wednesday that mandates the release of anyone in custody for failure to appear on a probation status hearing, contempt of court, a remand on a positive drug test, or a pre-trial misdemeanor. Some of those categories appear to overlap with the 2019 order that the Sheriff’s Office was already acting on. 

But on Thursday, Sheriff Marlin Gusman joined the public defenders office in asking the judges to go further, releasing more inmates.

“We have been fortunate thus far and have had a lower presumed infection rate among our inmates than other comparative facilities,” Gusman wrote in a letter to Pittman on Thursday. “However, for this to continue, we need your assistance.”

Gusman asked that Criminal District Court judges “give consideration to releases, even on a temporary basis, of any non-violent individuals without a criminal history.” He also asked for a 30-day suspension of alias capias warrants — typically issued for failure to appear in court — for “non-violent individuals.”

Gusman’s letter said that the seven inmates awaiting test results were showing at least one potential COVID-19 symptom. Several staff members who have been tested are now quarantined at home, the letter said.

The petition by the public defenders warns that given the confirmed cases of jail staff and recent inmates, “a rampant spread is inevitable.” 

“Now that coronavirus is confirmed within the jail, the safest measure for Petitioners and others, as well as for the staff who work within the jail, is to reduce the total number of human contacts—and the only way to do that is to release people from jail immediately,” the petition reads. 

Derwyn Bunton, the Chief Public Defender, said he wasn’t sure exactly how many inmates the petition would affect if the judges granted it. He said that prior to filing the petition the judges were already starting to inventory who was in the jail and what they were being detained for, to determine who might be eligible for release.

The Centers for Disease Control (CDC) says that anyone over the age of 65 is at higher risk for severe illness or death from COVID-19, the disease caused by the new coronavirus. 

As of Wednesday at least 17 people in the jail over the age of 60, and 124 over the age of 46, according to data on a City Council dashboard.

According to Bunton it is up to the court to decide how to respond to the petition. He said that the judges could collectively grant the petition, or each one could rule individually.

“We want them to act collectively,” Bunton said. “We want a wholesale review. That’s why we filed En Banc — something I don’t think has ever been done before.” 

“The thing for us is we want to get that jail as small as possible as fast as possible, so we can follow the CDC guidelines as close as possible,” he said. “At the jail, the virus is going to behave more like at Lambeth House than an apartment complex at Tulane.” 

Rob Kazik, the Judicial Administrator, said the Judges were meeting Thursday at 10AM and the public defenders’ petition was on the agenda. 

 “The judges are meeting daily to discuss the operations of the court,” he said, “and they are engaged in trying to find solutions.”  

This story has been updated to include the letter from Sheriff Marlin Gusman.

Charles Maldonado contributed to this story.

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...