Prosecutors Balance Public Safety with Compassion in Response to COVID-19

Contributing Authors: Nelson O. Bunn, Jr., Executive Director, NDAA

Photo credit: Nicola Forenza/iStock (Getty Images)

Times have changed. We are now in a virtual world where business operations, personal lives, and daily interactions we took for granted are a distant memory as we grapple with the spread of COVID-19. In a previous blog post, I highlighted steps being taken by prosecutors’ offices and court systems in response to the global pandemic ranging from enhanced use of technology like conducting remote hearings to the sharing of tips and strategies with prosecutor staff to promote healthy habits while working remotely for an indefinite period of time. One of the key trends is the coordination in local jurisdictions to initiate pretrial release for some offenders in certain circumstances, an effort that warrants further discussion.

First, we should all be concerned about the health, safety and overall well-being of currently incarcerated individuals. We should also be concerned about the correctional facility staff tasked with overseeing these populations. The front-line officers interacting with individuals in our communities are facing an increased risk and the prosecutors and public defenders are grappling with how the spread of COVID-19 impacts their operations and threatens to overload the criminal justice system.

Regardless of a pandemic, natural disaster or some other emergency crisis, crime does not stop. Some crimes increase as a result of an emergency like the spread of COVID-19, in particular due to stay at home orders. A recent NY Times article highlighted that for those individuals in an abusive relationship, the home is one of the most dangerous places to be and offers little outlet for escape from that abuse. The Federal Bureau of Investigation (FBI) also issued an alert cautioning that stay at home orders have the potential to increase abuse and exploitation of vulnerable children. As our healthcare system becomes overloaded during this time, so too will our criminal justice system.

Local jurisdictions around the country acknowledge this coming difficulty and are beginning to reduce local jail populations to protect inmates from the spread of COVID-19, a prudent effort that hopefully reduces the potential spread of the virus among a captive group that has little choice in the matter. At the same time, it’s also prudent to evaluate the danger posed to public safety when evaluating early release decisions. Prosecutors must and always will consider and evaluate both public safety and the input of crime victims in making any decision regarding someone potentially being released from custody, whether that be pre-trial or post-sentencing. Balancing the health risk and the public safety risk is a challenge and likely requires communication and coordination among prosecutors, public defenders, law enforcement, judges and other relevant stakeholders.

Some steps that are being taken in jurisdictions include:

· Reducing bonds

· Entering release on recognizance (ROR) orders

· Suspending the issuance of weekend sentences

· De-prioritizing arrests for certain offenses

· Not prosecuting low level offenses, as determined by the local jurisdiction

· Releasing elderly individuals medically at risk, or as determined by the local jurisdiction

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While these are all important steps that can be taken by a local jurisdiction based on individual prosecutorial discretion and collaboration with other law enforcement and criminal justice stakeholders, it’s also important to note the potential burden early release can place on any supervised release infrastructure currently in place. Any plan to increase the number of individuals eligible for early release or parole must account for the resources needed to properly staff parole or supervisory relief agencies and to monitor this population as it assimilates into society during a difficult time.

Whether it be the heightened risk for an incarcerated individual in a correctional facility or the potentially increased danger faced by a victim of domestic violence confined to his or her home, these two very different risks weigh on the minds of prosecutors and law enforcement daily. The current pandemic is a new challenge that offers the potential for new solutions. The criminal justice reform movement continues to call for the increased use of data in prosecutorial-decision making, increased prosecutor-led diversion programming and other improvements to the system in order to reduce inmate populations in federal, state and local facilities. Those discussions should continue. However, now is not the time to exploit this crisis by circumventing meaningful deliberation all in the name of the real goal of inmate well-being. The rush to make decisions or change policies could unintentionally place our communities at greater risk of harm, particularly as the war against the pandemic continues.

The National District Attorneys Association (NDAA) has consistently supported criminal justice policy changes including the passage of the First Step Act, Pell grant restoration for incarcerated individuals, and rehabilitation certificates for formerly incarcerated individuals to re-enter society. Prosecutors will continue working alongside community partners to ensure the well-being of those involved in our criminal justice system, while also preserving justice for our communities as we overcome this difficult time in our Nation’s history.

Nelson Bunn is the Executive Director of the National District Attorneys Association (NDAA). NDAA has over 5,500 members nationwide and serves as a national, non-partisan organization providing training, technical assistance and other resources in support of the prosecution profession.

More resources from the National District Attorneys Association in response to COVID-19

District Attorneys’ Offices Response to Coronavirus (COVID-19):

COVID-19: Virtual and Economic Impacts in the World of Prosecution:

Child Vulnerabilities in a Time of a Global Pandemic (Part 1):

Child Vulnerabilities in a Time of a Global Pandemic (Part 2):

Protecting Victims of Intimate Partner Violence During the COVID-19 (Coronavirus) Pandemic:

The National District Attorneys Association (NDAA) is the oldest and largest national organization representing state and local prosecutors in the country.