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Law360 (March 30, 2020, 3:43 PM EDT ) The American Civil Liberties Union urged Pennsylvania's highest court on Monday to take prompt action to reduce the state's prison population as correctional institutions face down the threat of COVID-19 outbreaks inside their walls.
The ACLU, which filed suit on behalf of five prisoners, said state correctional facilities were incapable of complying with social distancing rules meant to curb the spread of the virus and were ill-equipped to deal with outbreaks once they occurred.
"Across Pennsylvania, it is not possible for county jails to implement the most critical preventive measures set forth in the [U.S. Centers for Disease Control] guidance: social distancing, preventive hygiene, and the medical isolation of confirmed or suspected COVID-19 cases," the petition said. "Once the virus enters the jails, the regular movement of staff and visitors in and out means that prison walls and razor wire can neither slow nor stop viral spread."
The ACLU urged the Pennsylvania Supreme Court to order county-level judges to release a broad swath of their prison populations, including those within three months of, or beyond, their minimum sentence, those being held as a result of non-felony probation violations, those who are being held pretrial because of their inability to pay cash bail, and anyone at a heightened risk of contracting the potentially deadly virus.
The petition comes the morning after the state's Department of Corrections reported that a prisoner housed in a facility outside Philadelphia had become the state's first inmate to test positive for COVID-19.
Several inmates in countyfacilities, including in Delaware and Philadelphia counties, have also tested positive for the virus.
Meanwhile, the petition pointed out that infections had already taken hold in prison facilities outside Pennsylvania.
It pointed in particular to Riker's Island, a correctional complex in New York City where, according to the Legal Aid Society in New York, the infection rate is more than seven times that of the surrounding city and some 85 times higher than the country at large.
Without immediate action, the petition said the state's prisons would "become petri dishes that overwhelm both correctional and health care systems."
"The only humanitarian and constitutional solution is to immediately order the release of as many people as possible from our county jails," the petition said. "The time to act is now."
Some jurisdictions in Pennsylvania have already taken it upon themselves to start trying to reduce the inmate population.
In Allegheny County, for example, more than 500 have been released from jail through a coordinated effort by the courts, public defenders and the local sheriff's office to review cases of low-level offenders.
A similar review is underway in Lackawanna County, the petition said.
Outside Pennsylvania, a number of state, as well as county and local officials, have taken steps to try to reduce their own prison populations as the coronavirus pandemic washes across the country.
Across the river in New Jersey, the state's Supreme Court last week ordered the release of what could amount to 1,000 low-level offenders from county jails.
The petition filed in Pennsylvania on Monday said similar actions had been taken by high courts in Washington, South Carolina, Maine and Montana.
Larry Krasner, district attorney in Philadelphia, said in a statement that he supported the ACLU's effort.
"This historic health emergency demands swift, decisive action by all who have been empowered by the people to act on their behalf," Krasner said. "No one with any amount of public power should get to sit on the sidelines during this crisis."
A spokesperson for the DOC did not immediately return a message seeking comment Monday.
The petitioners are represented by Brian Deiderick of the Lebanon County Public Defender's Office, Hayden Nelson-Major, Ali Szemanski, Nyssa Taylor and Witold Walczak of the American Civil Liberties Union, Jonathan Feinberg, Susan Lin, Paul Messing and David Rudovsky of Kairys Rudovsky Messing Feinberg & Lin LLP and John Freedman and Samuel Shapiro of Arnold & Porter.
The case is In re: The Petition of the Pennsylvania Prison Society et al., case number 70 MM 2020, in the Supreme Court of Pennsylvania.
--Editing by Janice Carter Brown.
For a reprint of this article, please contact reprints@law360.com.
