By Molly Weisner
As the U.S. enters its fourth month of battling the coronavirus pandemic, states are evaluating ways to redirect new juvenile cases and monitor inmates.
In a given year, nearly 60,000 youth a year are incarcerated, the ACLU estimates. Juvenile courts nationwide can process half a million cases. And though youth crime overall has been on a steady decrease, this massive network that sentences youth in the U.S. faces a new problem: the coronavirus pandemic.
“This is so different,” said Shoshanna Paige, a senior public defender in Whatcom County, Wash. — a middle-income county on the Canadian border. “This is one big bugaboo that no one has any control over.”
Recently, states such as Connecticut, Louisiana, North Carolina and Ohio have been pressured to release young, nonviolent offenders to their families instead of suspending visits due to fear of the virus spreading in prisons. As youth face isolation from their families, suspended trials and inability to social distance, that pressure grows.
District attorneys, law enforcement and corrections workers are working to keep COVID-19 out of jails while also trying to deter new admissions to minimize harm to those working or serving time inside.
“On one hand, I want them to be taking all the precautions that they can to keep the kids who are there safe,” Paige said. “But short of just letting them all out, I’m not sure what else they can do.”
Fearing a prison outbreak
Families of those incarcerated are demanding answers about protective measures against the virus.
Lee Beers is currently serving nine years in prison in Florida. He has a condition that could put him at higher risk for COVID-19.
Now 28, Lee was an accomplished student in Hernando County, west of Orlando. In high school he was a volunteer firefighter and football player who was scouted to play after graduation.
But one day he got injured on the field. Knowing that surgery might limit his future ability to play, he decided to tough it out and go home with a prescription for painkillers to ease recovery.
He was sent home with oxycodone.
“Slowly but surely my little white picket fence, all the pieces started getting pulled out,” his mother, Mary Beers, said. “We realized that he was acting funny. He wasn’t the same person. That’s how it all began.”
What started drug charges for Lee turned into stealing his mother’s debit card.
He told the judge in his case, “I’m not going to prison. It’s a setup for failure,” then spent the next year there. After that, he started using methamphetamines and stole a vehicle. At that point, Mary Beers said, the judge was willing to offer a reduced sentence in combination with a few years in drug and mental health treatment.
But before the court could finalize that sentence, he racked up another charge.
“And now he’s sitting in there on completely nonviolent charges, in close quarters with guards that are coming in,” she said.
As of Monday, there are 280 COVID-19 youth diagnoses in juvenile facilities, with 28 states reporting cases affecting youth, staff or both, according to data by the Sentencing Project.
By May 4, Florida’s Department of Juvenile Justice reported six positive cases among juvenile inmates and 25 cases among correctional staff.
Paige said that while it’s one thing to try to reduce new intakes, it’s another to deal with youth inside who suddenly can’t visit with family, meet with mentors or social distance from other inmates and guards.
In many states, visitation was the first thing to go as the virus spread.
Making visitation work virtually
In Washington state, juveniles can’t make calls unless the family has paid for time, Paige said. This is standard in many jails and prisons across the U.S.
Mary Beers said she pays $20 to $30 a week to JPay, a national company based in Florida that wires money to inmates for phone calls, among other services.
Because of the pandemic, Washington and Florida’s departments of corrections have reduced costs for phone calls and video, but both Paige and Beers said it’s not the same as in-person visits.
Such visits are being limited in Whatcom County, but Paige said it’s unclear what restrictions jails and prisons are putting on visitors, which led to a major miscommunication.
In early March, after Washington Gov. Jay Inslee proclaimed a state of emergency due to the pandemic, one of Paige’s clients was expecting his mother to visit him in detention. She was turned away and less than a week later, she died.
Paige’s client believed his mother was asked to leave because of coronavirus restrictions, though Paige said they don’t know whether there were other reasons.
She stressed the importance of family contact, especially during the pandemic. Youth behind bars may have no news about how their family is doing, she said.
“One of the things that I find so horrific about our local policy in general is that you can have visits from your parents, but what about your siblings?” Paige said. “Those are important family relationships, too.”
Like many other jurisdictions, Paige said Whatcom lacks the technology to communicate with inmates via video or teleconference.
Mary Beers said she has experienced issues with video visitation since in-person visits were suspended in Florida through May 17. The video kiosks were down, and she wasn’t able to chat with her son. Sometimes she doesn’t know if the video will work until she tries to call.
When she has been able to phone her son, Beers said he’s scared.
“One of the things he had written to me said, ‘Mom, I’m scared I’m never going to see you again,’” Beers said. “So I called him and I tried to calm him. And he says, ‘What happens when all the guards get sick, and there’s nobody here to keep control?’”
She said the danger stems from having so many inmates housed together, even with precautions to stagger meal times, disinfect surfaces and limit visitation. Often inmates don’t have the funds to buy extra soap.
Hand sanitizer is considered contraband because of the high alcohol content.
David Garlock, a criminal justice advocate and former inmate in Alabama, said there’s too much potential for a public health disaster inside prisons without releasing nonviolent inmates or inmates nearing the end of their sentences.
“Would I be able to say I did my job as a politician allowing 3,000 men and women to die in prison than if one person gets out, commits another crime and 3,000 people stay healthy?” he said.
Prosecuting new offenses during a pandemic
The coronavirus pandemic also affects new offenders.
In Paige’s jurisdiction, juveniles who violate their parole account for a majority of the juvenile detention population.
When asked how local judges are reducing new cases, Paige said they’ve had to create a new standard of justice to slow intake and minimize contact between people as much as possible.
For example, two of her clients were arrested for violating their probation. But instead of issuing a new charge, the prosecutor chose to file it as a violation.
This difference is key. A fresh charge often signifies a new trial and potential custody. But a violation doesn’t necessarily guarantee a parolee will be incarcerated again, according to legal definitions.
In places like Whatcom, where juvenile arrests frequently come from parole violations, this softer approach aims to deter new trials and corrections admissions.
New York has been targeted as another state where mass incarceration of parole violations impedes “decarceration” efforts, according to the Prison Policy Initiative.
Nearly two-thirds of yearly prison admissions in some states are for technical probation violations, despite the fact that these minor infractions are nonviolent, according to a 2019 Council of State Governments report.
“A lot of these individuals could have a five-year sentence, but you’re actually giving them a death sentence because of the way the virus is spreading,” Garlock said.
To adapt, the courts have factored public health into sentencing decisions. Judges have weighed whether detaining a juvenile with runaway history, which Paige said her county frequently deals with, is safer than releasing them back to their homes where they may have elderly caretakers at risk of infection.
Another of Paige’s clients was recently arrested while on probation. The youth lived with great-grandparents and had been breaking curfew. During the trial, the probation officer tried to make the youth’s late-night escapades a violation on the grounds that it violated quarantine and risked the life of his elderly family.
Paige said that was struck down as an illegitimate parole violation, though the youth still spent time in juvenile detention before being sent back home.
“The kids who are [facing charges] so far have been the ones who are either facing a real serious, violent charge, or they’re kids who have the chronic runaway history,” she said. “I think the judge feels like, ‘Well, this kid is at risk, but who’s at risk if they’re running away?’”
With schools closed and children forced to stay at home, Paige also said stressful home environments or separation from healthy friendships or mentors outside the home can exacerbate runaway tendencies.
“It’s a real challenge,” she said. “It’s an isolating place in general because you don’t have much interaction except with the detention officers and maybe some of the other kids.”
So the new legal question judges and attorneys are asking themselves because of the pandemic is whether youth are safer in detention or back on the streets.
And like everything else coronavirus affects, there’s no precedent.
Garlock said the issue is two-fold: protecting juveniles during the pandemic means reducing mass incarceration and lengthy sentences, but also rigorous health screening for those already inside — including workers.
“It’s a breeding ground for this [virus],” he said.
Uncertainty looms for courts
As corrections and legal scramble to figure out how to protect youth already in the system, questions remain about what to do about any new offenses committed during quarantine.
Paige said while attorneys and courts are still trying to process cases that began before quarantine, it’s difficult when the inmate is in prison and the legal team is scattered between home and court.
She said she has no way to maintain confidentiality with clients who are inmates.
“If you didn’t already have the technology, well, we’re one of many places that’s struggling to have whatever we need just to allow basic court stuff to still function,” Paige said.
The Washington State Supreme Court suspended trials until after July 6. Paige said that for youth waiting on trials, she can’t even give them or their families an estimated court date because of the pandemic’s uncertainty.
And for Paige and her team, they fear a massive backlog once stay-at-home orders lift and courts must address the months of work that was put on hold.
The Trump administration, which has offered mixed advice about the coronavirus epidemic in the U.S., has not issued a federal directive on whether federal inmates will be released. On March 26, U.S. Attorney General William Barr said the Bureau of Prisons may release high-risk or nonviolent inmates to at-home confinement under the Coronavirus Aid, Relief and Economic Security (CARES) Act.
