Public defenders moving to have people released from jail due to COVID-19; Supreme Court denies petition to lower jail, prison populations

The first of several motions asking the court to release inmates from the Cascade County Adult Detention Center due to COVID-19 was heard in district court on April 13.

Mark Frisbie, of the state’s public defender office, asked the court to remove monetary bail as a condition of release for James Anthony Hopkins.

The case in front of the court on Monday was a revocation on an underlying conviction for failure to register as a violent offender due to a conviction for accountability to theft, for which he received a three year deferred imposition of sentence.

In that particular case, Hopkins is being held at the county jail on a $1,000 bail.

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According to jail records, he’s facing other pending charges, one case has a $1,000 bail and the other has a $10,000 bail.

Frisbie argues in his motion that because Hopkins is “too poor to afford monetary bail, defendant is being exposed to increased health risks associated with COVID-19.”

Cascade County Attorney Josh Racki said similar motions have been filed in several other criminal cases.

There are about a dozen bail motions related to COVID-19 scheduled in court on April 15.

In an April 14 afternoon decision, the Montana Supreme Court denied Disability Rights Montana’s petition asking the court to immediately reduce the population in Montana jails, prisons and houses of correction because Montana is under a state of emergency due to the COVID-19 pandemic.

In the denying the petition, the court writes that Disability Rights Montana “failed to establish that corrections and jail officials have violated a clear legal duty to reduce prisoner populations as requested. DRM also fails to establish that the courts of Montana are proceeding under a mistake of law or causing a gross injustice. Further, DRM has either completely ignored or misrepresented the facts that clearly demonstrate the executive and judicial branches have implemented appropriate and detailed measures for correctional facilities and jails to address the current state of emergency surrounding the critical health and safety issues that must be addressed in light of the emergence of the COVID-19 virus in this state.”

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District Court Judge Elizabeth Best maintained the bail and said Hopkins needed supervision if he was to be released and the county lacks a full pre-trial program that includes monitoring.

She said she didn’t want to make law enforcement officers continue to have to pick him up and bring him to the jail if he continued to violate conditions of his release, increasing the chances of bringing the virus into the jail when it’s not there currently.

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“I think the jail is doing everything they can,” to prevent COVID-19 from entering the jail and having plans in place should someone get sick to mitigate the spread.

During the April 13 hearing, Susan Weber from the county attorney’s office called Capt. Keith Kaululaau, the jail commander, as a witness to discuss their prevention measures.

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Kaululaau said their plans stems from their efforts to prevent the spread of H1N1 during that 2009 pandemic.

He said that when the COVID-19 outbreak started, the jail implemented their pandemic procedures on Jan. 21 and they have remained in place since.

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Kaululaau said that they used the 2009 plan and adjusted it based on guidelines and recommendations from the U.S. Centers for Disease Control and Prevention and the World Health Organization.

Kaululaau said that when a person is arrested and brought to the jail, staff take temperatures of that person as well as the arresting officers before they come into the booking area. He said he learned that precaution from his daughter who is a dispatcher in Texas and that’s what they were doing.

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All jail personnel self check their temperatures at home before coming to work, he said. If they have symptoms of any kind, they call their supervisor, set up tests and if they were to test positive for COVID-19, would isolate at home. If they test negative and are otherwise deemed healthy by medical professionals, they report to work, he said.

If anyone being brought to the jail or the officers escorting them appear to have symptoms, jail personnel will send them downtown to be tested by a medical provider.

Kaululaau said that so far, they’d sent four downtown for testing, none tested positive for COVID-19.

Kaululaau said they’re using two pressurized cells in the booking area in case isolation is necessary for any inmate awaiting test results. He said medical staff are monitoring inmates that fall into the high-risk categories for COVID-19 and anyone with a cough or flu like symptoms.

Currently, there’s no one at the jail with any symptoms, he said.

Anyone brought back on warrant, Kaululaau said the jail asks that they be temperature check at whatever facility they’re currently in and again when they arrive at the Cascade County jail. The transport team would also have their temperature checked.

The County Attorney’s office has worked to release those who the court had already deemed the lowest risk to the community and had released six to 12 inmates in an effort to reduce the jail population due to COVID-19, Racki said.

The jail population has been decreasing this year.

In January, the population was 445, Kaululaau said.

On April 13 it was 393 and the capacity is 372, since there are always seven empty beds on the state side, according to jail officials.

On April 14, the total jail population was 385.

Of those, 37 are sentenced, 13 to the state womens prison and 14 to the state mens prison.

The Department of Corrections has not yet picked them up. In early April, the county attorney’s office filed motions to move about two dozen inmates who had been sentenced to state prison from the county jail. The same day, Gov. Steve Bullock issued a directive suspending transfers into DOC custody.

Best signed orders to have 11 of those inmates transferred to state custody, but that is on hold currently. The state had until April 14 to respond to Best’s request for more information about their reasoning for not transferring those inmates.

The Cascade County Sheriff’s Office suspended visits to the jail, but attorneys can still come in to talk to inmates with phones through glass, but are physically separated.

In a worse case scenario, if inmates tested positive for COVID-19, Kaululaau said the facility would be locked down and quarantine within the jail.

Frisbie said that none of those prevention measures will help if there’s an asymptomatic person in the jail.

Frisbie said Hopkins wasn’t a flight risk or a danger the community.

Weber from the county attorney’s office said that Hopkins’ case, he has a criminal history with failure to appear and failure to register in other cases.