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Public Defender petitions RI Supreme Court to end cash bail amid ACI Covid spike

Dr Jennifer Clarke, the now former medical programs director at the Rhode Island Department of Corrections, added her support to the petition in an affidavit. The Formerly Incarcerated Union issues statement calling on Governor Gina Raimondo to do more to protect prison staff, residents and their families. The Rhode Island Public Defender‘s office is petitioning the Rhode Island Supreme Court
Photo for Public Defender petitions RI Supreme Court to end cash bail amid ACI Covid spike

Published on December 2, 2020
By Steve Ahlquist

Dr Jennifer Clarke, the now former medical programs director at the Rhode Island Department of Corrections, added her support to the petition in an affidavit. The Formerly Incarcerated Union issues statement calling on Governor Gina Raimondo to do more to protect prison staff, residents and their families.


The Rhode Island Public Defender‘s office is petitioning the Rhode Island Supreme Court to “issue an order to modify the Bail Guidelines to temporarily require the setting of personal recognizance bail – including in alleged violations of probation – except in extraordinary circumstances that must be enumerated on the record.” This would effectively and temporarily end the cash bail in Rhode Island at a time when COVID-19 cases are surging at the Adult Correctional Institutions (ACI).

See the petition here.

The Public Defender argues in their brief that this “extraordinary remedy is necessary to alleviate the serious health risks posed to inmates, Department of Corrections (DOC) employees, and the general public by continued mass incarceration during the current outbreak of … COVID-19. As now has been demonstrated across the country and in Rhode Island, prison outbreaks imperil us all.”

The brief goes on to describe efforts to reduce the prison population in April, early in the pandemic, with the release of “certain inmates whose sentences were expiring within ninety days.”

“This was the correct course,” notes the brief. “What was only a hypothesis in April has since been proven: Prisons are especially susceptible to the spread of COVID-19 because of the large number of people housed and working in close quarters. Indeed, correctional facilities have seen some of the most horrific outbreaks of the pandemic, including one in the Anamosa State Penitentiary in Iowa where 77% of the population has tested positive as of November 20, 2020, and one in Avenal State Prison in California, where more than 85% of the inmates have tested positive as of November 11, 2020.”

Ending cash bail is a measured response, says the Public Defender in the brief.

“First, this aims to reduce the awaiting-trial population, which has steadily grown over the course of the pandemic…

“Second, the awaiting-trial population poses the largest risk to public health. These new inmates must be quarantined, taking up precious space and resources at the prison. They receive visits from their lawyers, who must meet and communicate with their pretrial clients. And sometimes they must be transported from the prison to courthouses and back again, coming into contact with prison staff and court staff….

“Third, the modification of the Bail Guidelines will reduce the prison population while Rhode Island cases hit their highest marks yet. This will give DOC the precious additional space that it requires for quarantining new or sick inmates during this unprecedented outbreak…

“Finally, this proposed remedy is narrowly targeted to pretrial detainees whose releases are imminent. DOC statistics show that in nearly all misdemeanor cases in which surety bail is imposed, inmates are able to secure their release within two weeks… Setting personal recognizance bail in all but the most serious of cases would cut down on these risky and resource-consuming short-term stays.”

Cases are rapidly growing at the ACI, notes the brief, and Patricia Coyne-Fague, the Director of the Rhode Island Department of Corrections confirmed this in a Facebook post yesterday where she noted that 600 people, staff and residents, have tested positive for the virus.

One interesting part of the Public Defender’s petition is the inclusion of an affidavit from Dr Jennifer Clarke, the now former medical programs director at the Rhode Island Department of Corrections. On Tuesday Sofia Rudin at The Public’s Radio reported that Clarke had resigned her position.

“In my opinion, from a public health perspective,” writes Dr Clarke in the affidavit, “the fewer inmates the ACI maintains, in a congregate living environment, the safer the inmates are from a COVID-19 outbreak within the secured facilities.

“In my opinion, fewer inmates incarcerated will strengthen DOC’s ability to keep the virus out of the secured facilities and contain outbreaks.

“In my opinion, reducing the admission of new inmates will better allow DOC to quarantine new commitments and contain the potential spread of the virus to other inmates, correctional officers and the general public.”

Cherie Cruz, co-founder of the Formerly Incarcerated Union (FIU), issued a statement Tuesday evening, unaware of the Public Defender’s court filing. The statement reads:

“According to the RIDOC’s latest report, nearly 90% (316/354) of the people being held at the state’s maximum-security facility have been infected with COVID. There are over 2100 people currently being held across all five facilities at the RIDOC’s Adult Correctional Institutions (ACI). The ACI is clearly a COVID-19 hot spot. We, the members of FIU, are deeply concerned. We, the members of FIU, have questions.

“Last week, during the middle of a pandemic, the RIDOC’s Medical Director left. We want to know who is now coordinating the medical response to the growing outbreak. All the people being held at the ACI need and warrant such a response – as do the hundreds of staff at the prison who enter and leave the prison every day to return to their families and communities. We want daily updates from RIDOC on the number of people infected with COVID-19 in each facility. We want to know the specific measures being taken to stop the spread inside. We want to know why those in power, particularly Governor Raimondo, have not yet taken action to lower the number of people held at the ACI, including most critically why elderly and immunocompromised individuals have not been released.

“In addition, we have received reports from the inside that staff members are not wearing masks, while residents endure a daily 22+ hour lockdown in their cells – extraordinarily lengthy periods of time that are clearly inhumane. Ultimately, we want to know what the RIDOC, the RIDOH and Governor Raimondo are doing to ensure the health and wellbeing of Rhode Islanders who are being held at the ACI. We want to know who is overseeing and coordinating the medical response to the outbreak to ensure that the health, safety and well-being of our friends and loved ones behind the walls are being robustly addressed. We need answers for them.”

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