A month after a criminal justice group warned that a Houston, Texas, jail that experienced a Covid-19 outbreak was on track to eclipse its pre-pandemic population, the jail is again seeing a rise in coronavirus cases.

Early on in the pandemic, the Harris County judge, sheriff, and local advocates collaborated to reduce the jail population, primarily through “compassionate release” for people detained on nonviolent charges. Those efforts were stalled due to competing orders from state and local judges. Now, local officials are putting the blame on one another for letting conditions at the downtown Houston jail — home to the one of the largest incarcerated populations in the country — backslide. 

Since the start of the coronavirus outbreak to date, close to 1,000 people held in the jail have tested positive for Covid-19. One detained person and more than 12 staff were recently hospitalized with the virus, and two people who were incarcerated at the jail have died from it. The jail saw a spike in mid-April, with nearly 200 cases being reported at that time. Also in mid-April, the number of people incarcerated in Harris County Jail hit a low point of 7,363, the Houston Chronicle reported, and began to climb back to pre-pandemic levels — when the jail held more than 8,900 people — soon after. The number of coronavirus cases dropped to 27 a few weeks ago, but as of July 16, there were 76 cases, according to Jason Spencer, spokesperson for Harris County Sheriff Ed Gonzalez. Spencer said the majority of new cases are people who were recently arrested and are being tested during booking. 

The increase in cases at the jail coincides with an uptick in coronavirus cases throughout Texas, including in Houston. City officials are now calling for another lockdown. 

The story of how Harris County handled the ongoing pandemic could have been a model for other cities with large numbers of incarcerated people. Law enforcement officials and advocates worked together early on to successfully cut the jail population and stop the spread of coronavirus inside the facility. Gonzalez and Harris County Judge Lina Hidalgo called in late March for “compassionate release.” The jail cut its population by more than 1,500 people between early March and the end of April. But a March 30 executive order from Texas Republican Gov. Greg Abbott — blocking release for people serving time for crimes involving physical violence or threats of such — set off mass confusion as to who can be released and under what conditions, and effectively put a hold on those efforts. The jail population started steadily increasing again in late April. 

“It is unconscionable for wealth to determine whether a person can be home socially distancing or held in a jail with thousands of other people.”

Now, as advocates continue to push for the release of people who remain behind bars — many held in pretrial detention simply because they cannot afford to post bail — officials are blaming one another and insisting their hands are tied. 

“A jail is an extremely dangerous place for a person to sit out a deadly pandemic,” Amanda Woog, executive director of the Texas Fair Defense Project, a nonprofit focused on rights for low-income defendants, told The Intercept, “and it is unconscionable for wealth to determine whether a person can be home socially distancing or held in a jail with thousands of other people.” 

The Harris County facility is on track to eclipse its pre-coronavirus population by Labor Day, according to the report released in June by the Justice Management Institute, a local nonprofit focused on criminal justice that’s been consulting for the county for the last five years. 

The report, addressed to Hidalgo and Harris County commissioners, said issues in the jail system had persisted long before the pandemic, and pointed to the jail system’s “inability to handle the volume of felony cases,” leading to long delays and prolonged periods of pretrial incarceration. Harris County is still wading through a yearslong backlog of court cases from after Hurricane Harvey, which flooded multiple floors of the 20-story courthouse and shut it down for nine months starting in September 2017. 

The report noted 87 percent of people in the jail who have cases before the district court are being held pretrial. In total, the Harris County jail can hold 10,500 people. Today, at least 6,255 of the 8,010 people currently incarcerated are in pretrial proceedings.

Inside jails, social distancing and isolation in response to coronavirus can mean extended solitary confinement. And with backlogs of pending charges and delays due to the closure of courts, pretrial detainees — who have not been convicted of crimes — face extended jail time and additional obstacles to obtaining release. 

“Given the gravity of the circumstances, every entity in the criminal justice system must make uncomfortable, but necessary changes.”

The JMI report recommends that elected officials dismiss all nonviolent felony cases older than nine months. “Given the gravity of the circumstances, every entity in the criminal justice system must make uncomfortable, but necessary changes,” the report said, detailing a course of action for judges to begin reviewing cases. 

Harris County District Attorney Kim Ogg’s office declined to answer specific questions on whether they agreed with calls from the JMI report and advocates to dismiss nonviolent felony cases, saying the decision was up to judges. “It is up to a judge in every instance to decide which defendants should be released and under what conditions,” spokesperson Michael Kolenc said in a statement. 

State District Judge DaSean Jones, who works on felony cases, disagreed with that assessment. “Judges do not dismiss cases,” Jones told The Intercept. “The District Attorney has the power to reject the acceptance of or to dismiss a case. For this reason, a call of the Judges to dismiss cases is misguided,” he said. Jones was elected in 2018 on a reform platform, backed by the Democratic Socialists of America. Audia Jones, his wife, ran unsuccessfully against Ogg for district attorney in March. 

Specifics in the chain of command for releasing people differ from county to county, “but what remains the same is that elected prosecutors have a bully pulpit,” said Miriam Krinsky, executive director of Fair and Just Prosecution, a nonprofit focused on criminal justice reform. “They have tremendous discretion in deciding when to charge, what to charge, who to charge, and whether to seek detention. And their recommendation carries great weight. But even if they don’t control every lever of change,” she explained, “they can champion change in significant ways.”

“This is a moment where we have a ticking time bomb inside our correctional facilities,” Krinsky said. “And for DAs not to do everything within their power to act and influence things that they don’t control, I think, is really tragic.” 

In his executive order, Abbott framed efforts to halt jail releases as a matter of public safety and health. Release of people “charged with, convicted of, or having a history of offenses involving physical violence” or threats of such would “gravely threaten public safety” and “hinder efforts to cope with the COVID-19 disaster,” the order read. The order limited judges’ discretion to release people on personal bond or on good time, a shortened sentence based on good conduct.

Exercising emergency judicial powers conferred under the current pandemic, Hidalgo on April 1 issued an executive order directing officials to release people held pretrial on nonviolent charges. The order called on the sheriff to promptly provide a list of eligible detainees. Two days later, another Harris County judge, Herb Ritchie, signed an order voiding Hidalgo’s. The sheriff’s office tweeted that they would stop releasing people as the confusion was sorted out.  

On April 8, the Texas Fair Defense Project and the American Civil Liberties Union sued Abbott and Texas Attorney General Ken Paxton in response to Abbott’s executive order. The groups argued that the order violated the Constitution by limiting judicial discretion on certain releases and exceeded his pandemic emergency powers. On April 23, the Texas Supreme Court ruled in Abbott’s favor. In two cases filed by incarcerated people seeking release, lower courts, one in Travis County on April 10 and the other in Harris County on May 28, found parts of the order unconstitutional.

The May 28 case dealt with an individual good time case, and ever since then, the sheriff has stopped holding people past their good time date, Woog said. Despite that, the jail population continues to increase — as does the number of coronavirus cases. 

“As our general free world population has seen an increase in cases, our biggest threat right now is new bookings.”

Once it was clear that large scale release was stalling in courts, the sheriff’s office shifted their focus to “How do we contain the spread of the virus among our population, and how do we make the best out of this situation knowing that social distancing is not an option in a jail with 8,000 inmates,” said Spencer, the sheriff’s spokesperson. “As our general free world population has seen an increase in cases, our biggest threat right now is new bookings.” 

The jail has tested more than 4,600 people to date, a little over half its population. Once people are set to be detained for more than a few days, they’re screened and quarantined with other new arrivals. 

Advocacy groups lament the sheriff for not pushing harder following the lower court decisions. Woog described the role sheriffs play as a “bully pulpit or coordination role. … The sheriff can ring the alarm about the dangerous conditions in the jail, accelerate release using good time and other credits and identify populations of people who shouldn’t be coming into the jail or should be released from the jail.”

Despite the backtracking in Harris County, examples from other cities across the country suggest that the “dramatic reset” taking place across the criminal justice system may stick,” Krinsky said.                                                           

At least 20 cities across the U.S. have used varying methods to cut incarcerated populations, including expanded use of citations as an alternative to typical arrests, according to FJP. “There have been significant strides around the country, and most of those strides have been the local level, to reduce jail populations in a variety of ways,” Krinsky said.  

Action by law enforcement officials in some of the nation’s largest cities — including Houston, Los Angeles, and Nashville — led to the release of large numbers of people from incarceration as the coronavirus hit the United States in March. Los Angeles County is aiming to maintain its lower jail numbers, and, following pressure from activists, the city council voted to cut the police department’s budget by $150 million. In other cities like Baltimore, Seattle, and Durham, district attorneys have moved quickly to change filing and sentencing practices to help cut jail populations.

In Washington, D.C., police have been issuing more citations rather than making arrests, Washingtonian Magazine reported. District police on March 17 issued an order changing their citation policy to include additional low-level offenses like traffic violations and shoplifting. That change was part of early efforts to avoid overcrowding in jails and halt the spread of the coronavirus. 

Switching from routine arrests to citations has the potential to curb incidents of police brutality and police killings by limiting police contact with civilians. Cutting back on arrests could circumvent situations that escalate and end in killings, like that of George Floyd, or Rayshard Brooks in Atlanta, who spoke with police for close to 30 minutes before they tried to arrest him, then shot and killed him. There have been more than 500 instances of police brutality nationwide since Minneapolis police killed Floyd on May 25, Vice reported

Some cities are at risk of moving backward. In New York, elected officials and police have tried to attribute increases in civilian crime (amid ongoing protests against police brutality, a pandemic, and an economic crisis) to relaxing bail reform and releasing people from detention. But that’s misleading, Krinsky said. San Francisco reduced its jail population by close to 50 percent, she said, and “crime hasn’t gone up. There hasn’t been a massive public safety risk posed by limiting the number of people we bring into the justice system.”

Even as jail populations are plummeting around the country, the population of prisons — which tend to hold people already convicted of a crime and sentenced to more than one year — are largely staying stagnant or continuing to increase, Krinsky added. “It may be hard to change attitudes nationwide,” she said. “But in many jurisdictions, I think that there has been an awakening to the fact that we’ve been incarcerating too many people for too long. And it doesn’t have to be this way.”