Prisons, COVID-19 and the New Definition of Public Safety

As Covid-19 numbers rise in New Jersey, Brian Neary argues for release of pretrial defendants with underlying conditions

Published in 2020 New Jersey Super Lawyers Magazine

Criminal defense lawyer Brian Neary has pretty much done it all when it comes to criminal law. But on Friday, March 20, he did something that was a first for him: He argued a release motion for a client over Zoom videoconference.

As the Covid-19 virus rages in New Jersey (which, at press time, had the second-highest number of cases in the nation), the courthouses, like most public spaces, are closed expect for some emergency hearings. But Neary felt an air of urgency on behalf of a particular client in jail awaiting trial. “He has a compromised immune system, making him more susceptible to [death] from the coronavirus,” Neary says. “Jail shouldn’t be a death sentence for him.”

When the virus started hitting the area hard, Neary began searching client files for medical notes. “Of course, business concerns have to be recognized, but client needs are what are most important,” he says. “My most immediate concern right now is the most vulnerable in the criminal justice system—people in jails and prisons. How are we going to treat them? What’s the human thing to do?”

Neary knew what he was up against, noting the inevitable “public safety” aspect of the conversation as it relates to releasing pretrial defendants in the state. “I understand that, but now there’s another way of thinking about public safety that we haven’t thought of before,” he says. “One, the individual; and two, the population and the need to save limited medical resources for COVID-19 patients. Jails are breeding grounds for disease as it is. I’ve still been visiting the jails the past week, but my family is begging me: ‘You can’t go back.’ It wouldn’t be hard for this virus to be carried in and out.”

The motion didn’t work out in Neary’s clients favor. “I argued my release motion, emphasizing my client’s unique medical condition and the inevitability of COVID-19 presence in that jail, a combination that would lead to my client using limited medical resources when he gets ill again,” Neary says. The prosecutor opposed all Neary’s arguments—“especially the entry of the disease into that jail,” he says. After an hour argument on Zoom, the judge denied his motion.

A few days later, a corrections officer and an inmate in that particular jail tested positive for COVID-19. “I wish I wasn’t so prescient,” Neary says. “The lesson? Be persistent as to the reality of this disease in the face of traditional law enforcement views.”

With more cases being confirmed every day across the country, Neary knows he has to get used to what will be a new normal for a while, but it’s not without its challenges. “It’s hard to effectively advocate for a criminal client on a computer screen,” he says. “It’s hard to read non-verbal cues from the judge, and it’s hard to argue to a five-inch image.”

Harder still—the questions he’s fielding from family members with loved ones in a place where social distancing isn’t an option. “I have been speaking with frightened family members for the last few days who are worrying about their loved ones in jail and prison,” he says. “Prison separation is never easy. … Now it is unimaginable, because of the unknown.”

Neary notes that New Jersey has joined states like California and Florid who are grappling with COVID-19 and overpopulated jails by issuing inmate release orders.

In this case, New Jersey Chief Justice Stuart Rabner signed an order calling for the temporary release of 1,000 people from across the state who are serving county jail sentences for probation violations, municipal court convictions, low-level indictable crimes and disorderly persons offenses. “This is really good news,” Neary says. “[This situation] really rips open the scar of prisons and mass incarceration, a discussion that needs to boldly continue once this crisis is over.”

Neary will continue to file motions for bail/release review for clients awaiting trial; and for those serving a sentence while their case is on appeal, he’ll ask for expedited appeal decisions.

“It may be futile, but I need to try for the client and the family’s sake,” he says.

For more information and articles for legal professionals navigating COVID-19 as it relates to their law practice and clients, visit FindLaw’s COVID-19 resource center or visit superlawyers.com/articles (search for COVID-19).

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