By Matthew Santoni

Law360 (April 3, 2020, 7:46 PM EDT ) County jails and prisons in the Keystone State don't have to release wide swaths of prisoners in response to the novel coronavirus, the Supreme Court of Pennsylvania said Friday, but they may have to consider releasing some if they're too crowded to stop the spread of the disease.

The justices denied a petition brought by five inmates, the Pennsylvania Prison Society and the ACLU seeking the blanket release of inmates at heightened risk of contracting the virus, those on pretrial detention because of their inability to pay cash bail, those being held for non-felony probation violations and those who have served or are close to their minimum sentence.

But the Supreme Court also said that given the risks, it was directing president judges in each county to work with stakeholders and their correctional institutions to comply with the coronavirus safety guidelines from the CDC and other public health officials if they hadn't already, and to identify ways to reduce prison populations if necessary.

"In light of petitioners' allegations that not all judicial districts containing county correctional institutions have so responded, there remains the potential of unnecessary overcrowding in these facilities which must be addressed for the health and welfare of correctional staffs, inmates, medical professionals, as well as the general public," the court's opinion said.

The petition, filed March 30, had asked the state Supreme Court to use its "King's Bench" jurisdiction and order counties to start releasing prisoners and make it less likely that they'll catch and spread the potentially deadly and highly contagious coronavirus in their institutions. But the court said such a wide-ranging order was inappropriate.

"The immediate release of specified categories of incarcerated persons in every county correctional institution, as sought by petitioners, fails to take into account the potential danger of inmates to victims and the general population, as well as the diversity of situations present within individual institutions and communities, which vary dramatically in size and population density," the opinion said.

But with the ACLU warning that Pennsylvania prisons could turn into "petri dishes" — and pointing to places like New York's Riker's Island that were already hotbeds for the disease — the justices said the counties needed to make sure they were keeping their prisoners and staff safe.

"We direct the President Judges of each judicial district to coordinate with relevant county stakeholders to ensure that the county correctional institutions in their districts address the threat of COVID-19, applying the recommendations of public health officials, including the CDC's Interim Guidance on Management of Coronavirus Disease 2019 in Correctional and Detention Facilities," the opinion said.

Counties that determine they can't meet prevention guidelines with their current jail populations should work to identify inmates who can be released or transferred, with an eye toward the safety of victims and the public, the Supreme Court said.

"Moreover, consistent with these above considerations, President Judges are to undertake efforts to limit the introduction of new inmates into the county prison system," the order said.

Some counties were already working to reduce their prison population, the justices noted.

"We acknowledge that in some of the Commonwealth's judicial districts, judges, district attorneys, the defense bar, corrections officials, and other stakeholders are currently engaged in a concerted, proactive effort to reduce the transmission of the disease in county correctional institutions and surrounding communities through careful reduction of the institutions' populations and other preventative measures," it said.

The ACLU petition had cited the Allegheny County Jail, which said it had released 701 inmates as of March 31. Allegheny County representatives said March 27 that a staff member who did not have direct contact with inmates tested positive for COVID-19 but hadn't been at work since March 19. A representative from the Allegheny County District Attorney's Office said prosecutors there had already been working with the Public Defender's office, private criminal attorneys and court administration to do what the justices were now telling other counties to do.

The city of Philadelphia announced March 27 that an employee of the city's Department of Prisons and one inmate had tested positive. The Pennsylvania Department of Corrections announced March 30 that it had quarantined all state correctional facilities the day after an inmate at State Correctional Institution – Phoenix in Montgomery County tested positive for COVID-19.

Chief Justice Thomas G. Saylor wrote a concurring statement, joined by Justices Debra Todd, Kevin M. Dougherty and Sallie Updyke Mundy, that said that while courts can identify prisoners and classes of prisoners to be released, the "primary authority" to release them was in the hands of Gov. Tom Wolf and/or the state legislature.

"Perhaps some releases may be effectuated by the judiciary under existing statutory provisions already sanctioned by the legislature, such as via the probation and parole authority," the justices' concurring statement said. "Otherwise, I believe the governor should fashion an appropriate executive order — and/or the General Assembly should enact appropriate legislation — to secure those releases deemed to be necessary by the health department and which are consonant with the preservation of public safety and other relevant factors, such as those delineated in the court's present order."

The ACLU released a statement saying that the court's acknowledgment of the need to cut down some prisons' populations was still a win.

"Though the Pennsylvania state Supreme Court did not grant our request for emergency relief in county jails statewide, today's ruling is nevertheless a big victory in the fight to keep our jails safe during this public health crisis," said ACLU of Pennsylvania Legal Director Witold Walczak. "This ruling shows that the court agrees with our underlying premise that action must be taken to reduce jail populations in order to keep them safe."

Representatives of the Governor's Office and the Pennsylvania District Attorneys Association did not immediately respond to requests for comment. The Department of Corrections declined to comment.

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 state is represented by Michael Daley of the Administrative Office of Pennsylvania Courts, Jill Marie Graziano and Catherine B. Kiefer of the Pennsylvania District Attorneys Association, Theron Richard Perez and Timothy A. Holmes of the Pennsylvania Department of Corrections, Gregory G. Schwab of the Governor's Office of General Counsel, and Joshua Shapiro, Ronald Eisenberg and Keli Marie Neary of the Pennsylvania Office of Attorney General.

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.

--Additional reporting by Matt Fair. Editing by Emily Kokoll.

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