In a world of Covid-19 infection, prisoners and pretrial detainees are out of sight and, to too many, out of mind. Perhaps in recognition of that phenomenon, the Philadelphia Bar’s Criminal Justice Section named Assistant Defender Thomas Innes as the recipient of its annual Thurgood Marshall Award. Mr. Innes is Director of Prisoner Services with the Defender Association of Philadelphia; and in his acceptance speech this past Thursday [December 17] he used his remarks to shine a light on their plight. The portion of his speech addressing the pandemic and its consequences is as follows:
According to the Bar Website:….The Thurgood Marshall award is given to someone, and I quote here:
To recognize significant accomplishments in improving the administration of criminal justice or the goals of criminal justice.
Frankly I really don’t believe that I am deserving of this award—maybe for efforts but not for “accomplishments: On the day you give me this award for those seeming “accomplishments” here is a sum of the state in which we find ourselves:
At the time of the court “shutdown” in March, there were 24,000 open criminal matters in Philadelphia, according to the District Attorney’s Office. According to that same report, the number of open criminal matters is increasing by a thousand each month, so the total of open criminal matters today borders on 33,000.
There are people in the Philadelphia County Jail who were arrested in January and February of 2020 and who have not yet had a preliminary hearing — ten months later –where the complainants, the victims, can come and be seen and heard. Ten months for clients without a test of the evidence against them… and there are many many people who have been waiting in jail shorter but still unconscionable time for that evidence testing and the possibility of release.
Those hearings and trials have been held up. There has not been a municipal court trial in our knowledge since March 16 – nine months ago from yesterday ; in terms of preliminary hearings, Municipal Court has done better both with in person and virtual preliminary hearings on the rise since a very low during the summer.
Work is reaching fruition to begin remote preliminary hearings with civilian witnesses…. Slow in coming but terribly necessary and we thank Judge Dugan, Judge Pittman and of course Roseanne Unger and the DAO for their efforts.
We have had a smattering of felony trials since that time – a smattering compared to the inventory of open cases.
The Philly jails have unilaterally stopped bringing custody clients to court until the middle of January. The jails unilaterally are refusing to permit in-person attorney visits. The jails provide homemade masks for inmates who come to court which are so shoddy that no less than two Common Pleas court judges have felt compelled to give custody clients masks for use in their courtrooms.
To be clear: on the one hand, the jail has kept the COVID numbers within reason : a total of 1000 cases since March 20– But at what cost? Our fellow citizens in custody on state road have had a draconian lack of freedom… most of the jails today have a rule of 23 hours in and less than twenty minutes out of their cells- just about enough time to shower.
There are 4348 folks in the Philadelphia system as of today…. Between March, 2020 and two days ago, none of those people were able to see, meet with, perhaps even touch their loved ones. Phone calls yes, but not in person visits or even “zoom” visits — That’s nine months of babies born, family members grown ill or passing away, children to reassure …people to reassure them.
Thankfully, but just two days ago, after being pushed on many sides, the jail began an initiative to permit virtual “visits” with family and loved ones… and we appreciate that finally coming – we are waiting to hear if it is up and running without snags.
At this point, Defense counsel cannot see their custody clients in person until most likely the end of the year. The alternatives are barely adequate… there is one zoom tablet available for all defense counsel at CFCF – where literally one half of the 4300 folks in jail are housed- that’s 2000 inmates and one zoom pad, period. An alternative system recently set up by the jail is not user friendly and frankly not at all thought out… defense counsel can schedule a forty-five minute session on line, but every fifteen minutes the prisoner is cut off and must reconnect- that’s dictated in the contract which the jails entered without speaking to anyone who interviews or meets with clients.
Think of it this way…
Just imagine if you went to a doctor about a life-threatening problem and while consulting with the doctor at an appointment limited to 45 minutes, in three 15 minute segments, she had to leave the room and then come back twice during the consultation (if she came back at all), what would you make of that system? Would you stand for that? … that’s what defense counsel faces at this moment.
At the beginning of the shutdown, there was a program to help release folks in custody and stem the overcrowding. That program worked: by May 8 there were only 3645 in custody. Since then that program has ended – and as I said the number in custody is at 4348 today.
Lack of proper ability to see incarcerated clients impacts on the ability of the courts to function expeditiously… this impacts not only on criminal defendants but also on victims and witnesses who want and need their days in court. And it has a direct impact on the jail population.
I will say it again:
The courts cannot function without proper defense access to our custody clients.
To quote Justice Thurgood Marshall
THE MEASURE OF A COUNTRY’S GREATNESS IS ITS ABILITY TO RETAIN COMPASSION IN TIMES OF CRISIS.
Honestly and candidly, I don’t feel we have yet to show or provide that compassion to all of those people in the county jail—
We need to have universal daily testing at the jails so people can leave their cells and come to court safely. We need to protect people coming into the CJC – the are no temp checks, no triage questions and no plexiglass shield protection for counsel sitting next to custody clients who have not been tested – compare that to stores, libraries and such.
I take the receipt of this award as a charge and as a challenge to work harder to help instill Justice Marshall’s words into our system. Let us all work together to make that happen immediately.