Over the last several weeks, amid the threat of the coronavirus, the New Orleans jail population has decreased by hundreds of people. Judges have issued orders to release certain detainees, defense attorneys have argued for reduced bonds, and organizations have raised thousands of dollars to bail people out.  Even the Sheriff’s Office has requested that efforts be made to reduce the jail population in order to open up more space in order to segregate sick inmates.

But according to the Orleans Public Defenders, there are currently dozens of people stuck in jail on parole holds who cannot legally bond out and are struggling to find any recourse to challenge their incarceration. In many cases, those people were arrested on new, nonviolent charges while on parole for a previous conviction. A number of them also had underlying nonviolent convictions.

“They’re just kind of stuck in this purgatory,” said Colin Reingold, litigation director for the Orleans Public Defenders, “because court isn’t happening, they can’t bond out on their new non-violent charges. There is no way for them to get out of jail or contest the charges.” 

Normally, when someone is arrested, a judge either sets a bond amount or releases that person. But if a person is also on parole, a hold is placed on them that prevents them from bonding out or being released. Under Louisiana law that hold can only be lifted by the Division of  Probation and Parole, which is part of the Louisiana Department of Public Safety and Corrections — a district judge generally has no authority over the matter. 

Defendants are entitled to a parole revocation hearing before a parole committee, but often they will defer those hearings until their new charges have been resolved, in hopes that they may be acquitted or have the charges reduced or dropped, and thus making it less likely their parole will be revoked.

But now, with the court closed and no trials taking place, those defendants have no way of knowing when their new charges will be resolved, and so far, parole revocation hearings have been suspended. 

“Most guys will do that,” said Reingold of deferring the revocation hearings.  “And most guys had done that prior to this COVID period that we’re in now. But those guys did that knowing that they would soon have a chance to fight their case in court. But now there is no court. And it seems somewhat indefinite that there is no court. So now they have waved that hearing, but because of that, they’re stuck.”

“Almost anyone in jail right now could bond out if they had the money,” said Reingold. “These guys, it doesn’t matter how much money they have, or how low the bond is.”

According to a summary of their response to COVID-19 releashabed by the Department of Corrections, Probation and Parole has recommended that holds be released on “less serious/dangerous offenses, such as non-violent/non-sex offense charges.”

“These measures have resulted in the removal/release of approximately 2000 detainer holds off of people in jail for probation or parole related sanctions or pending revocations which has also resulted in the release of some of these people from jail and parish facilities who did not have any other non-related outstanding charge/bond/warrant restricting their release,” the memo reads.

While Reingold acknowledges that Probation and Parole has initiated some releases, there are still a number of cases that the public defenders believe should be eligible for release who are still in jail.

“We have been in pretty frequent contact with Probation and Parole, they have lifted some parole holds,” he said. “They are putting a lot of weight on the prior offense, whereas we think the controlling concern should be what the alleged new conduct is. And they don’t want to lift any holds from anything gun-related.”

Such is the case of Gerald Bailey, who was arrested in late December and charged with illegal possession of stolen things, possession of cocaine under 2 grams, and possession of drug paraphernalia — none of which he has yet been convicted of.  Bailey was on parole for three previous charges — one of which was possession of a firearm by someone convicted of domestic abuse and battery.  

Bailey’s attorney at the public defender’s office filed a writ of habeas corpus in Orleans Parish Criminal District Court arguing that the current circumstances had made his continued incarceration unlawful, both because of the threat to his safety and his inability to contest his charges. 

“Mr. Bailey contends that, because of the pandemic currently threatening the health and life of all of those confined in residential settings, and because of the increased danger to the Louisiana public as a whole when outbreaks occur in such settings, his continued detention pending the resolution of nonviolent charges has become illegal,” the petition reads. 

“Because trials are not happening and parole hearings are not happening, Mr. Bailey will remain in jail indefinitely with no opportunity to challenge the charges against him and no opportunity to bond out pending their resolution. This is contrary to our State and Federal Constitutions, as it violates both Due Process and the protections against cruel and unusual punishment.”

Bailey had a hearing in front of ad-hoc Judge Calvin Johnson on April 2nd. While Johnson agreed that the situation was troubling, he felt that under state law the petition needed to be filed in Baton Rouge. (Generally, habeas petitions are filed in whichever parish a person is incarcerated, but statutory law also mandates that the “venue in any action in which an individual committed to the Department of Public Safety and Corrections contests any action of the committee is East Baton Rouge Parish.”)

The next day, Bailey’s lawyers filed the petition in East Baton Rouge Parish. Legally, the court had 72 hours to respond. But the lawyers waited over a week and a half to hear back. 

Finally, on Thursday, a remote hearing was held on Bailey’s petition in front of East Baton Rouge Judge Trudy White. According to Reingold, at the hearing the Department of Corrections suggested that Bailey could make a new request for a revocation hearing.  But it was unclear whether or not a hearing would take place even if it was requested, nor whether it would even be possible to hold a parole revocation hearing remotely, which generally involves witness testimony. 

Another hearing in front of Judge White to address those questions was set for next week. And on Thursday afternoon, the docket  on the Probation and Parole website showed a number of revocation hearings scheduled for June. According to the public defenders, those hearings had previously been scheduled for March, and it was unclear how or if they would actually be taking place. 

Francis Abbott, the Executive Director of the Louisiana Board of Pardons and Parole, did not immediately respond to request for comment. Ken Pastorick, a spokesperson for the Department of Corrections, referred The Lens to the department’s COVID-19 response memo but did not immediately respond to questions about whether revocation hearings would continue or to specific questions about Gerald Bailey’s hearing. 

Despite feeling he did not have the authority to lift Bailey’s parole hold, New Orleans Judge Calvin Johnson said he was disturbed by the situation. 

“What galls me about it was that there was no remedy for them,” he said when reached on Wednesday. “The 19th Judicial District wasn’t hearing their issue. The parole board itself wasn’t meeting at all to deal with the issue. If neither is dealing with the issue then they have no place to go. It just seemed to me that you could not have a person in that situation.”