JACKSONVILLE, Fla. — The Jacksonville State Attorney’s Office, in a memo shared with the Times-Union by a defense attorney, has called for significant reductions in the jail population in Duval, Clay and Nassau counties through a number of new policies.
The policies, drafted by Chief Assistant State Attorney L.E. Hutton, call for offering plea deals that avoid jail time, releasing some pre-trial inmates and not filing charges in non-violent “marginal cases.”
Hutton’s memo emphasized these are “temporary strategies to limit the spread of this Virus.”
Public Defender Charlie Cofer said the memo stemmed from discussions between his and State Attorney Melissa Nelson’s top staff coordinating a way to resolve concerns about COVID-19 potentially spreading in Jacksonville’s Pre-Trial Detention Facility where social distancing practices are difficult, if not impossible, to maintain.
The Florida prison system has stopped accepting state-sentenced inmates, which makes it more likely county jails will face overcrowding if more inmates aren’t released pre-trial.
The policy memo still leaves a lot of discretion to individual prosecutors and division chiefs. It remains to be seen how willing assistant state attorneys are to follow the directive.
The Jacksonville Sheriff’s Office won’t say how many people are in its jail or if it’s overcapacity. Spokesmen for the Sheriff’s Office said that information needs to be submitted as a records request, but due to COVID-19, the records unit is “operating on minimum staff.”
If the jail were overcapacity, it could be subject to a federal injunction. But not sharing that information means defense lawyers have no way of knowing whether the jail is overcrowded.
The Florida Department of Corrections publishes a monthly report on the average inmate population in each county jail, but the most recent report is from December, and it only reports an average.
In that December report, Duval had 3,170 people in county jail, half of whom were not convicted and were awaiting trial. Most of the pre-trial inmates were awaiting felony trials, while 271 were awaiting misdemeanor trials.
Already in Duval, 98 percent of felony defendants and 99.8 percent of misdemeanor defendants didn’t go to trial from January 2018 through June 2019, per state court data.
The State Attorney’s Office policy drew praise from criminal defense attorneys.
“I am grateful that the State Attorney’s Office is working diligently to help reduce the jail population and potentially save the lives of the most vulnerable defendants,” said Belkis Plata, a criminal defense attorney and president-elect of the Northeast Florida chapter of the Florida Association of Criminal Defense Lawyers. ”... Unfortunately, our jails cycle large numbers of people in and out on a daily basis, which poses a great threat to the admission and spread of the virus throughout the jail. I believe everyone understands that an outbreak in our jails could potentially be catastrophic for the inmates as well as our community as a whole.”
State Attorney Melissa Nelson said in a written statement, “All of us, including criminal justice actors, are obligated to help blunt the spread of this pandemic. The written policy memorializes the steps we have been taking every day to assist in this public health crisis.”
Other prosecutors across the country have been trying different tools to reduce jail and prison populations during the coronavirus outbreak. Earlier in the week, 31 elected prosecutors across the country signed a statement urging five recommendations to reduce jail and prison populations. (State Attorney Melissa Nelson wasn’t one of the prosecutors who signed the statement.)
Nelson’s policy called for all prosecutors to “determine whether a time-served and/or probationary sentence is appropriate” in any non-violent case where the state is currently offering one year of jail time or less. That includes both misdemeanors and felonies.
Misdemeanor prosecutors, who handle first appearance after an arrest for all cases including felonies, were told to “resolve as many cases as possible” at that first hearing. If the case isn’t resolved, then prosecutors should allow defendants accused of non-violent crimes to be released with either no cash bond, minimal bond or an alternative, which usually means ankle monitoring.
Prosecutors should only do this if the defendant doesn’t represent a danger to the community or a flight risk.
Hutton also said prosecutors should “strongly consider” releasing any defendants, seemingly including those charged with violent crimes, over the age of 60 or who have a health condition that makes them more vulnerable.
It’s unclear how that’s different from current law, which already says defendants have a “presumption in favor of release on nonmonetary conditions” if they’re not charged with a narrow set of “dangerous crimes.”
In reality, defendants not charged with those crimes are often still required to pay a cash bond to be released before facing trial.
While prosecutors are working remotely, Hutton also told attorneys not to file charges in “marginal cases involving non-violent misdemeanor and felonies.” It’s not clear what would count as a marginal case.
Hutton reminded attorneys that they are still bound to seek victims’ input before resolving a case, a requirement codified in the Florida Constitution under an amendment passed in 2018.
“If you determine that the defendant does not represent a danger to the community and you have made the appropriate victim notification, then a time-served or probationary sentence must be strongly considered.”