ACLU of NH and NHACDL Urges Those Most Vulnerable to COVID-19 Be Released from Prisons and Jails Where Possible

Expands on crucial COVID-19 response recommendations already made on civil rights and to correctional facilities

CONCORD, N.H. — New Hampshire public officials should heed public health experts’ advice and take steps to protect individuals in the criminal legal system who are at high risk of severe illness or death from COVID-19, wrote the ACLU of New Hampshire and the NH Association of Criminal Defense Lawyers in a letter to high ranking state officials, judges, county attorneys, and jail superintendents today.

In the letter, they are specifically calling for police to limit the number of people arrested and detained, and for the release from prisons and jails, where possible, of individuals identified by the Centers for Disease Control and Prevention (CDC) as vulnerable to COVID-19 to prevent a public health crisis.

People involved in the criminal legal system are at higher risk to COVID-19 given close quarters and because those entering correctional facilities are often already in poor health. The steps outlined in the letter are especially critical in New Hampshire, where the state prison system has a disproportionately elderly population compared to other states.

“This is an unprecedented health crisis and requires urgent and creative steps to protect those most vulnerable to infection,” said Devon Chaffee, executive director of the ACLU of New Hampshire. “Every aspect of the criminal legal system, from policing, prosecution and pretrial hearings, to sentencing, confinement, and release, must come under intense scrutiny for how it responds to this national public health crisis. We make these asks not on a permanent basis, but exclusively in response to this crisis we are all in together.”

“People who are older than 65, who are immunocompromised, or who have underlying conditions must be moved out of New Hampshire’s incarceration system before COVID-19 affects these facilities,” said Robin Melone, president of the NH Association of Criminal Defense Lawyers. “Similarly, police and prosecutors must take steps to reduce the number of people entering the criminal legal system during this crisis. Such measures are being recommended exclusively on an interim basis in recognition that correctional facilities put people at heightened risk of exposure. We believe these steps can and should be taken while protecting public safety.”

In the letter, the ACLU of New Hampshire and NH Association of Criminal Defense Lawyers are calling on:

• Police to limit the number of people who are arrested and detained even if just for a short time, in close proximity to other people or in spaces where maintaining hygiene and implementing recommended health practices is difficult. Police should issue citations/hand summonses in lieu of arrests wherever possible so that people can return home, balancing the need for arrest with the overwhelming public safety concerns presented by coronavirus.
• Prosecutors to limit the number of people who are held in jails or in other confined facilities by reducing their requests for pre-trial detention where possible and carceral-based sentences.
• Judges to allow anyone with an open criminal case and upcoming hearing the chance to voluntarily waive that hearing or conduct that hearing via telephone or video conference.
• Probation and Parole Agents and Parole Boards to expedite and expand release opportunities for incarcerated people, reducing the population in prisons as recommended by health experts. Boards should institute a presumption for release for all people who have a parole hearing scheduled in the next year.
• Department of Corrections and Parole Board to utilize the medical parole process to release people the CDC has identified as particularly vulnerable, including people over the age of 65 and people who are immunocompromised. At-home confinement also should be readily utilized as an alternative to incarceration for elderly and vulnerable prison populations.
• Office of Cost Containment (OCC) should ask the courts to vacate outstanding warrants or orders for unpaid court-appointed counsel fees, and for failure to appear at hearings related to such fees.

Public health experts and groups such as Dr. Gregg Gonsalves, doctors working in New York City Hospitals, Dr. Marc Stern, Dr. Oluwadamilola T. Oladeru and Adam Beckman, Dr. Anne Spaulding, Homer Venters, and Josiah Rich have all clearly stated that preventing the harm inflicted by SARS-CoV-2 and COVID-19 can become immensely more difficult for people involved in the criminal legal system.

By following the recommendations outlined in the ACLU’s and the NHACDL’s letter, state and local officials can create a culture in which transparency, safety, and the health of all people is the paramount concern.