Out of the flurry of lawsuits that have recently been launched in response to the  Covid-19 epidemic, one stands out among the rest. On March 30, 2020, the ACLU asked the Pennsylvania Supreme Court to invoke its rarely-used “King’s Bench” powers to release an untold number of inmates housed across Pennsylvania’s 67 diverse counties. Beyond its colorful prose, however, the ACLU’s petition amounts to little more than a shameful (if not predictable) attempt to exploit the pandemic as a means to justify the ACLU’s ultimate political endgame: the blanket release of lawbreakers back into our communities. But as is usually the case, the ends don’t justify the means; and in this particular case, even the ends would have come at their own significant cost: the risk to public safety in the Commonwealth. 

Luckily for PA residents, and victims of crime in particular, the PA State Supreme Court slapped down the ACLU’s petition. But the magnitude of the ACLU’s attempt to leverage this crisis, at the expense of regular Pennsylvanians, is worth careful consideration as we examine public responses to the pandemic.

To be clear, there is no doubting that the threat of  Covid-19 outbreaks in correctional facilities pose unique concerns for the health of inmates, staff, and visitors alike. These concerns justify recalibrating how such facilities are run — something that is already happening at a county level, as the Pennsylvania District Attorneys Association notes and the ACLU suit ignores — and implementing certain measures to combat unnecessary transmission of  Covid-19. This occurs much in the same way that average people have been forced in recent weeks to reevaluate virtually every aspect of how we run our own businesses and daily lives. In this sense, the ACLU’s pursuit may seem — at least at first glance — to be a reasonable or even noble one. But the details of the ACLU’s petition reveal a far different story.

The magnitude of the ACLU’s attempt to leverage this crisis, at the expense of regular Pennsylvanians, is worth careful consideration as we examine public responses to the pandemic.

The petition begins with the premise that the current pandemic “presents an extraordinary issue of public safety and urgent need to protect the health of all Pennsylvania residents and save lives by limiting the spread of  Covid-19 among incarcerated people.” From there, the ACLU goes on to spend 30-some pages engaging in not-so-subtle fear mongering, all the while implicitly suggesting that only a limited number of non-violent inmates would be immediately sprung loose under its proposal. 

Yet nothing could be further from the truth. As the petition eventually reveals, what the ACLU actually advocates is a “one-size-fits-all” approach, by which it sought to have the state Supreme Court order the immediate release of, among others, the following categories of inmates: “elderly prisoners,” which the ACLU shockingly defined as those over the age of 45; prisoners suffering from a wide range of medical conditions, no matter their charged offense; those detained on cash bail; and those who are within three months of their minimum sentence. Considering the ACLU’s purported goal is to avoid the spread of  Covid-19 and protect the health of all Pennsylvanians, its demand for the immediate release of such broad swaths of criminals into our communities raises significantly more questions than answers.

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Most notably, there is no telling precisely how many of the approximately 37,000 inmates that are collectively housed in Pennsylvania’s jails would have been suddenly released into our communities, or in which counties. Nor is there any way of knowing for sure whether these individuals — many of whom come from some of the most disadvantaged populations — would have access to essential resources and services, such as housing, employment, mental and behavioral health services, health care, substance use treatment, and public benefits. Reacclimating released prisoners is a difficult enough task in the best of times, and grows perilous for everybody — including those released — during a pandemic. In light of these uncertainties, it is reasonable to fear that the release of an unknown number of inmates back into the general population would have actually exacerbated the public health crisis, rather than alleviated it.

it is reasonable to fear that the release of an unknown number of inmates back into the general population would have actually exacerbated the public health crisis, rather than alleviated it.

Of course, public health is only one side of the coin, and the ACLU unsurprisingly downplays or misrepresents the countervailing concerns for public safety. For example, while the ACLU repeatedly emphasizes that it does not seek the release of those who are incarcerated for violent offense, its proposed categories fail entirely to take into account the past and present criminal histories of any individuals who fall within them. To put this in perspective, any inmate who is 45 years old, or has a qualifying medical condition would have presumptively been subject to immediate release, regardless of the basis for their current incarceration or their past criminal behavior (or, for that matter, their mental health and drug and alcohol abuse histories). 

In fact, as the ACLU would have it, even someone accused of rape or murder would be presumptively subject to immediate release if they were unable to post cash bail. This is deeply troubling. Just imagine it from a victim’s perspective — a domestic abuser, rapist, or the murderer of a loved one suddenly back on the streets, all in the name of “public health.” And even for those who are currently incarcerated for less serious crimes, as anyone who has worked in the criminal justice system knows well, the mere fact that someone is incarcerated for a non-violent offense does not mean that same person is without a history of violence. 

As the ACLU would have it, even someone accused of rape or murder would be presumptively subject to immediate release if they were unable to post cash bail.

At a time when domestic assaults are rapidly on the rise, police are being instructed to make fewer arrests, petty and violent crime is on the rise in Philadelphia, and self-righteous “progressive” prosecutors are refusing to charge criminals, the public should be particularly concerned about the blanket release of potentially violent individuals back into our communities.

There is good reason to be concerned about the safety risks Covid-19 poses to all Pennsylvanians — including those who are incarcerated. But when the ACLU advocated for such a broad release of inmates without any consideration of the unique circumstances of each county jail, the criminal histories of those who reside within them, or the impact their release would have on victims and public safety, it revealed what prosecutors across the Commonwealth already well understand: the ACLU is far more intent on achieving its own political agenda than on protecting the wellbeing of Pennsylvanians.

Guy D’Andrea is an attorney who practices civil law in pursuit of justice for victims of sexual abuse. He is a former Assistant District Attorney in Philadelphia.