At a time when we’re supposed to be socially distancing and staying at least six feet away from one another, the nation’s jails and prisons could be a perfect place for the COVID-19 virus to easily spread. That’s why the Legal Aid Society of New York City is calling for an immediate end to all arrests in the five boroughs until the pandemic is over. The group says lives can be saved if arrests are halted, as well as the release of anyone currently in detention for parole violations or on pre-trial detention. The vast majority of those currently incarcerated in New York City, in other words.

“City Hall must place an immediate moratorium on arrests, and for the hundreds of clients we have languishing in DOC custody pretrial or because of a parole violation, we call for their immediate release. These facilities are literal breeding grounds for infectious disease such as COVID-19. The continued incarceration of our clients during this health crisis could very well carry a death sentence,” said Tina Luongo, Attorney-in-Charge of the Criminal Defense Practice at The Legal Aid Society

I’m understanding of the idea that places like Rikers Island have a lot of people in close confinement and therefore the coronavirus may spread quickly through the facility. However, I can’t sign off on the idea that we just stop making arrests for the next several weeks, and I can’t imagine many New Yorkers who aren’t behind bars are excited about the idea either. Law and order is very important to New Yorkers, and I’m guessing right now that need feels particularly acute since so few residents have the ability to defend themselves with a firearm. Frankly, I think New Yorkers are far more likely to call for crackdowns on crime if we start to see any unraveling of the social fabric than to embrace the idea of emptying the jails and putting a stop to all arrests, no matter how progressive the city may claim to be.

At the same time, I wouldn’t be surprised to see New York City adopt a policy of limiting arrests to violent crimes only, as well as releasing non-violent probation offenders and pre-trial detentions in order to allow for more space between prisoners themselves as well as the prisoners and corrections officers, who would likely be the ones to introduce infection into the facility, and could also spread it outside of work. Solitary confinement may go from being a punishment to a luxury in a facility like Rikers Island, and the more distance you can put between inmates, the better. That might also mean staggering meal times and limiting time outside of cells, unfortunately. In that, the inmates behind bars won’t be much different from the New Yorkers locked behind their apartment doors.

The Legal Aid Society of New York City has a valid point, but a completely unrealistic plan. What we actually are starting to see around the country though are attempts to let non-violent offenders out a little early, and for officers to use more discretion in making arrests. The Washington Association of Sheriffs and Police Chiefs issued a memo to all departments recently from a public health professor in Washington State who had several realistic suggestions for how jails should handle their population to attempt to slow the spread of the disease.

1. Downsizing- Talk with prosecutors and judges ahead of time to develop a plan if you need to downsize. a. Are there people you can release on their own recognizance? Do you have a priority list (who do you release if you need to downsize by 5%? 10%? etc.)? b. Are there alternatives to arrest for certain crimes, or, in dire situations, are there crimes for which your patrol division will not arrest?

2. Supplemental staff- Think about where could you might get supplementary staff. Retirees? Patrol?

3. Inmate activities and movement- What activities/programs can you curtail or cut?

4. Influenza- In the present environment, it’s hard to imagine this, but the flu remains a greater threat to community (and jail) health today than COVID-19. As of the week ending February 22, CDC lists Washington State (and 38 other states) as having flu activity in the highest of the high category. So far this season, in our state alone, there have been 74 deaths from the flu (and 18,000 deaths nation-wide). And flu vaccination is very safe and very effective in preventing or attenuating the current strains of influenza virus going around. Staff who have not yet been vaccinated against the flu should be encouraged to do so. The better protected your staff is, the less likely you are to have absences from at least one infection, and it will help avoid confusion and panic that someone has COVID-19 infection. If it will help encourage vaccination, consider arranging with a local pharmacy to offer the vaccine on-site at no charge (actually, if employees have insurance, it may very well be covered).

So yes, law enforcement is already talking about these things, but they’re not going anywhere near Legal Aid of NYC’s recommendation to open up the jail cells and let everyone walk away. In fact, even as I was writing this my friend Rob O’Donnell, a retired NYC police detective, tweeted out new orders for cops in Philadelphia.

It doesn’t say how long these orders will be in effect, but we know the CDC spoke yesterday about a 15-day window to try to flatten the curve of the increase in the number of infected individuals. That window would close on March 31st, and I imagine new orders will likely be given based on our success (or lack therof). This isn’t permanent, by any means, but that doesn’t mean it won’t have an impact on crime in Philadelphia over the next few weeks. Retail theft might be hard, given the number of stores that are currently closed, but there’s probably a case to be made that shoplifting at this moment in time is a greater offense than it was two weeks ago, and should result in an actual arrest.

I think an equally strong case could be made for not making an arrest for simply carrying a firearm without a license at this point in time, but I know that no argument would persuade Mayor Jim Kenney of the right of self-defense in a time of uncertainty and fear.

Even though arrests aren’t going to be made for these non-violent offenses, it’s important to note that the new order for Philly police are to temporarily detain suspects, confirm their identity, get their paperwork in order, release the offender, and submit the paperwork to the detective division. A warrant for their arrest will be issued, and when circumstances allow, the individual would be arrested and they’d start to make their way through the criminal justice system.

That’s the theory, anyway. We’ll see how well this works in practice.