Police around Alaska are under temporary, coronavirus-related orders to not jail anyone on misdemeanor charges except for domestic violence or stalking.
And for inmates seeking release from jail, it is now possible to request a bail hearing due to concerns over coronavirus or the disease it causes, COVID-19.
That’s according to two different court orders both aimed at reducing the number of people in Alaska’s jails, citing fears that coronavirus will be hard to control behind jailhouse walls, where close contact is unavoidable.
One order, signed March 27 by the presiding judges for all four Alaska judicial districts, sets a temporary bail schedule for misdemeanor crimes. It says anyone charged with a misdemeanor, other than domestic violence or stalking, is to be released on their own recognizance.
According to the order, an arrest for a misdemeanor and the subsequent booking and court hearings could create unnecessary health risks by putting more people in contact with each other.
The presiding judges wrote in the order that the temporary bail schedule balances the health risks against the potential risk for alleged offenders to be a danger to the public.
“I would hope that it is not seen as a signal that they can get away with more,” said Deputy Attorney General John Skidmore, head of the state’s Criminal Division. “I would hope that it’s an indication that courts have set bail schedules in an attempt to help navigate the waters we’re in, in terms of COVID.”
An arresting officer or a prosecutor can still ask a judge to modify bail and hold someone in jail if they feel it’s necessary. Also, anyone charged with a crime while intoxicated is to be released to the care of another person or held until their breath-alcohol level tests below 0.08 grams of alcohol per 210 liters of breath, the legal limit to drive.
Skidmore said the state Department of Law is not going to fight the order in court.
“It’s not really my place to say whether or not I agree or disagree with it,” he said. “They certainly have the authority to issue this. Whether or not it turns out to be a good public policy decision is one that I’m sure people will look at, and there will be significant discussions about in the future.”
The presiding judges’ order setting a temporary bail schedule only affects misdemeanor crimes, and police officers are still supposed to arrest anyone charged with a felony. But for some defendants already in jail, whether on felony or misdemeanor charges, the coronavirus pandemic has also provided a new avenue for getting out.
In a March 24 order, the Alaska Court of Appeals overturned earlier trial court decisions and said the existence of the coronavirus pandemic can be considered relevant in a defendant’s request for a bail hearing.
The order also says trial court judges should consider the context of the pandemic when hearing the defendants’ proposals for release. Those proposals often include asking a judge to reduce the monetary amounts for bail, to remove requirements for third-party custodians or to approve plans for electronic ankle monitoring outside of jail.
One such defendant is Donald McQuade, 63, charged just last year in the 1978 murder of Shelley Connolly in Anchorage. McQuade is seeking reduced bail and release on ankle monitoring due to concerns about his underlying medical issues and increased health risk from contracting COVID-19.
A judge reduced McQuade’s bail last week but did not approve his entire plan for release.
The Court of Appeals judges wrote that a trial court’s analysis of the risk to public safety, or the risk of a defendant running away and not showing up to court, is different now because of coronavirus.
“Incarcerating a defendant under conditions that do not permit compliance with widespread health directives designed to halt the spread of the virus poses significant health risks not only to other inmates and to correctional facility staff, but also to the rest of the public,” the order says.
But some say the health risk for the jail population does not outweigh the safety risk to the public or victims of crime, who might be re-victimized if a perpetrator is not jailed.
Taylor Winston, director of the Alaska Office of Victims’ Rights, said her office has long opposed bail schedules if they lead to judges not considering a victim’s input on bail, since the outcome is largely already a foregone conclusion.
And Winston said she worries that judges might not scrutinize bail requests by incarcerated defendants as heavily as they should.
“Certainly, there are many violent offenders who should not be released out into the community, because of the types of crimes they’ve perpetrated,” Winston said. “And sometimes we’re talking lethal danger, OK? Like killing people or harming people for life. So, I think that you have to keep a balance, right?”
Skidmore, the head of the state Criminal Division, said prosecutors have been much busier lately with coronavirus-related bail hearings. He said there used to be between five and 10 bail hearings in a typical day in one jurisdiction, where, recently, there have been as many as 40 in a day.
“But I don’t know that that means that 40 people are being released,” Skidmore said. “I think it just means that the courts are doing what they’re supposed to do, which is grant hearings.”
That increase might also be due, in part, to the courts having more time available for bail hearings, Skidmore said. In March, the Alaska Supreme Court issued special orders to halt many other Superior and District court proceedings and postpone all trials and grand jury proceedings.
Meantime, in its efforts to prevent the virus’s spread in Alaska’s jails and prisons, the Department of Corrections continues to check correctional officers’ temperature at the start of each shift, and a policy of no visitation for inmates remains in effect.
According to Department of Corrections spokesperson Sarah Gallagher, 13 inmates in Alaska correctional facilities have been tested for the virus as of Monday, with 10 tests coming back negative and three still pending results.