How to keep a thief from getting a possible death sentence in the time of coronavirus

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There are many reasons a thief in the United States doesn’t get a death sentence.

Most are obvious. Basically, we just don’t do that sort of thing.

Even in biblical times, they might only lose a hand.

But with the country in the grip of COVID-19, the disease caused by the coronavirus, a non-violent criminal or a defendant jailed in lieu of bail on a low-level charge, is at risk of death in the nation’s prisons. As are corrections officers, administrators, medical staff, the folks who serve the food and those who clean up the place.

State supreme courts in New Jersey and Pennsylvania were asked to order the release of certain prisoners as the deadly infection arrived in the correctional facilities in Northampton and Warren counties.

In Pennsylvania, the justices denied the request but directed county officials to consider the issue because of “the undeniable threat to the health of the inmates, the correctional staff and their families, and the surrounding communities. Accordingly action must be taken to mitigate the potential of a public health crisis.”

In New Jersey, the court moved the case to mediation and the state attorney general, county prosecutors and county public defenders decided to let some prisoners out and weigh how to review prisoners that authorities couldn’t agree to release, Warren County Prosecutor James L. Pfeiffer explained.

Northampton County Prison in Easton, which years back would bump up against its 900-inmate maximum, on March 23 had 661 in custody, an official said. As of as of Wednesday, it had fallen below 531, county Executive Lamont McClure told county council Thursday night.

Northampton County Prison, 666 Walnut St., Easton. (Rudy Miller | For lehighvalleylive.com)

The Warren County Correctional Center in White Township, which before bail reform often had 135 to 140 inmates on any given day, had been running about 115 after beginning to house Hunterdon County inmates in February, Warden Ken McCarthy said. As of Wednesday, there were 68 inmates, McCarthy added.

“Intakes have definitely been reduced since this started,” McCarthy said.

Typically, prosecutors spend day and night trying to send the guilty to jail. And public defenders and other defense attorneys do their best to keep the presumed innocent out. Judges, while they exert a significant amount of influence, are supposed to be neutral arbiters, not necessarily driving the process toward a preconceived end.

“I believe we all have worked well together" since the Supreme Court’s request, Northampton County President Judge Michael Koury Jr. told lehighvalleylive.com.

Warren County Chief Public Defender Karl Keys added, the prosecutor’s office there “has been unusually cooperative. We’re all in this together.”

Even before the Pennsylvania Supreme Court on April 3 ordered “relative stakeholders” to be gathered by each county’s president judge to review “current capabilities of the county correctional institutions in their district to address the spread of COVID-19," Northampton County had begun the process, Koury said. Northampton County Department of Corrections solicitor Richard Santee had organized a meeting with various county officials to discuss options.

That, really, was all the county was required to do by the Supreme Court, Koury said.

But, Santee said, “This epidemic certainly has caused everybody to look at these cases more carefully” to keep people “out of jail who don’t need to be there.” All the stakeholders, Santee said, “are doing their best to allow them to leave the facility to avoid the risk of COVID-19.”

With the caveat, of course, that victims are considered and notified, they said.

Representatives of Northampton County’s district attorney’s office, public defender’s office, department of corrections, court administration, pre-trial services, probation and parole and others form the group. Some members of which as a rule are adversarial. But they came up with a plan, several of them said.

“One of the best options was to grant furloughs,” Koury said.

That means nonviolent offenders without disciplinary histories, many nearing the end of their sentences, could be sent home for a time -- at this point until the middle of the summer -- then be brought back to complete their sentences in a hopefully safer environment.

More than 40 have been granted recently and only a handful denied, some of them because of jurisdictional issues, officials said.

Northampton County Chief Public Defender Nuria DiLuzio.

Since the county temporarily closed its work release facility in West Easton, it made sense to furlough many of those inmates because it allowed them to keep their jobs, Chief Public Defender Nuria DiLuzio said.

DiLuzio has been “very aggressive in filing these petitions," Santee said. “At worst,” DiLuzio said, they take a couple of days to get to Koury’s recently created “essential court”, where he is the last word on the various options for getting inmates out of prison or keeping them there. Koury is the only county judge hearing cases as trials and civil actions have been put off for now.

Although the furlough requests have to be considered by the prison, the district attorney’s office -- which set up a specific system to quickly process them -- and others in the system, several a day reach Koury, he said.

These prisoners “have proven reliable,” District Attorney Terry Houck said. “Since the pandemic has taken hold, we’ve evaluated low-level, non-violent offenders for furlough. The furlough doesn’t release them. ... They have to return to serve the sentence.”

Many people are held in the prison because they were sentenced and served time but after getting out violated the terms of their release and were sent back to jail on a detainer. But the second part of the process -- a hearing involving probation and parole officials -- is not happening in its current form. Instead, Koury is hearing the cases, and this is a second way to get certain inmates out of the prison for now. They could be released and face their normal hearing at a future date.

And for those who are arraigned on charges and sent to the prison in lieu of bail to await the legal process, the county picks them up nearly from the start -- or even earlier. Pre-trial services is now sending someone to Central Booking before arraignments to weigh the factors that contribute to bail, which basically exists to ensure the defendant shows up for future court actions.

“This county has a very exhaustive bail process,” Houck said. Pre-trial services does an assessment of a new inmate -- it apparently involves 24 questions -- “that really avoids unreasonable bail. If set, the defense attorney has the option to file a bail modification."

Northampton County District Attorney Terry Houck. (Courtesy photo | For lehighvalleylive.com)

And that’s the third main way to get someone out of jail quickly.

Because Houck is part of the prosecution, “We pretty much believe everybody who is in jail should be there,” he said. “Their bail conditions are just.”

But “everyone is working in a cooperative vein” because, he cautions, the coronavirus doesn’t just target prisoners. There are corrections officers, nurses, other medical staff, food service employees and those who clean the prison who are equally at risk. While inmates and corrections officers tested positive for COVID-19 at Northampton County Prison, at the Warren County facility, only three corrections officers have become sick, officials said.

And most of the prisoners -- be they in the state or county systems -- will at some point return home, Keys said, so, as the pandemic continues, a longer prison stay could eventually put family, friends and neighbors at risk.

So, for example, when an 18-year-old Easton man arrived the other day at Northampton County Prison on a possession with intent to deliver marijuana charge that carried a $20,000 bail, pre-trial services allowed a 10 percent option and he was released when a family member put up $2,000, records show.

Every case that’s being considered for temporary release is unique and must be handled that way, DiLuzio said. Sometimes there are outside detainers or past histories that mean the inmate has to stay put. One had four open cases, she said. That won’t fly.

But another on state parole and facing a county detainer was released after the state was asked to sign off, she said. Sometimes what’s needed is a drug rehab or mental health bed that must be found to suit treatment requirements in bail, she said.

“Every inmate has individual needs that need to be met,” she said. “... Daily we’re identifying people who would benefit from a bail reduction petition.”

And the prison administration is searching for them as well, Santee said.

DiLuzio’s phone rings throughout the day and letters arrive from inside the prison asking for help, she said. Since April 1 she was has prepared and submitted 65 petitions, she said.

“Primarily I’m vetting these cases,” DiLuzio said. Then they are handled off to full-time attorneys in her office, who bring in the district attorney’s office and quickly get the petitions that all agree upon to Koury, she said.

DiLuzio keeps a spreadsheet to keep track of it all as her staff needs to respond to family members as well as inmates.

Overall, the new process is working, she said.

“I’m particularly proud of the effort being made in Northampton County,” she said. “I’ve been practicing for over 20 years in Northampton County. I have a lot of longstanding relationships. Working together comes easily.”

The key to it all? “A lot of Wawa coffee,” she said with a laugh.

While the movement of the constant cases is swift, Koury said he is confident that “I have reviewed thoroughly the cases and weighed all the factors, pro and con. I granted furloughs to prisoners that I think I should. And denied them for defendants that shouldn’t be released because they are a danger to society.”

What it comes down to, Santee said, is “weighing the threat of the coronavirus vs. keeping the public safe.”

James L. Pfeiffer, a Lehigh Valley attorney and former New Jersey judge, will take over the Warren County Prosecutor's Office as acting prosecutor on Nov. 1, 2019.

Pfeiffer, the Warren County prosecutor, has only been on the job for several months, and bail reform in New Jersey is only a few years old.

But, different now from what happens in Pennsylvania, when someone is arrested in the Garden State, bail isn’t set. An on-call county prosecutor decides the suspect either goes in or stays out of jail.

And since the COVID-19 risk has ramped up, those committing a third-degree offense aren’t going straight to jail any more. (Normally such a charge doesn’t expose a defendant to state court time. These crimes can include things such as narcotics possession, some arsons and some robberies.) Instead they are given a summons and a court date.

One caveat to the lower-rung offenses would be a domestic assault that involves an injury, he said.

There are 30 people awaiting trial at the moment in Warren County’s jail, he said.

Pfeiffer doesn’t want to add to that number unless necessary.

“What we don’t want to be doing is lodging people in jail,” the prosecutor said, adding that there are some people who must be incarcerated. “Unless it’s a second-degree offense, the person should be released on a summons.”

If someone is held, they will get a detention hearing within a couple of days, giving the inmate a chance to state why they should be released pending a court date, Pfeiffer said.

Detailers are handled on a “case-by-case basis,” he said. “If we feel necessary for protection of the public, we are moving to detain people.”

There have been a number of detainer hearings recently, he said.

Crime, overall, is down, he said. So the inflow to the jail is limited, Pfeiffer and McCarthy confirmed.

“This is one of the few times criminals are doing the right thing,” Pfeiffer added. Even domestic violence, which was predicted to spike during state stay-at-home orders, has been limited in its increase in the county, he said.

Twelve Warren County prisoners have been temporarily released in the past two weeks on a furlough-type program after the public defender’s office brought show-cause orders, Pfeiffer said.

The jail in recent weeks has limited public access to prisoners and increased medical screening with questions and temperature checks for prison personnel, Pfeiffer said.

If a prisoner tests positive now, there is plenty of room now since the jail has “a couple of empty blocks,” McCarthy said.

All inmates entering the prison system in both counties are held in quarantine for 14 days, officials said.

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Tony Rhodin may be reached at arhodin@lehighvalleylive.com. Follow him on Twitter @TonyRhodin. If there’s anything about this story that needs attention, please email him. Find lehighvalleylive.com on Facebook.

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