PART 1 “The Fight to Decarcerate”

Even in the very early days of the pandemic, medical experts recognized that incarcerated populations were at uniquely high risk for Covid-19 outbreaks. The inherently transient nature of this group—especially within local county jails, where individuals are often only incarcerated for short periods—makes identifying potential Covid-19 exposures and quarantining positive contacts nearly impossible. Additionally, by their nature, jails are not conducive to any of the CDC recommendations on social distancing and infection prevention—incarcerated individuals are often forced to be in close contact with one another for long periods, including in situations where mask-wearing is not possible, like during mealtimes. Moreover, the high incarceration rates of Black, Latinx, and Native populations track the same demographics of populations in which Covid-19 infection is most likely to be symptomatic and severe.[1]

In the early days of the pandemic, The Nashville Defenders prioritized our advocacy efforts to focus on petitioning the Courts to implement policies that would significantly reduce the local jail populations. Based on the medical guidance at the time, reducing the jail populations would make it easier for local Sheriff’s departments and corrections officers to protect the health and safety of incarcerated individuals, corrections staff, and the community at large.[2] Chief Public Defender Martesha Johnson first worked with Sheriff Daron Hall to identify categories of incarcerated persons and sent names to the Davidson County District Attorney’s office for consideration for early release. Out of concern for the pace of analyzing over a thousand people and the looming fear of an outbreak in the Nashville jails, Chief Johnson filed a motion requesting the Courts to, in their collective power, reduce jail populations by releasing certain categories of incarcerated persons. The motion included those serving misdemeanor sentences, those accused of technical violations of probation, and those who had not been found guilty of any crime but instead were being held in pretrial detention simply because they did not have enough money to afford their cash bonds. At the time of the filing, this population of legally innocent but indigent incarcerated individuals made up 81% of Nashville’s entire local jail population.[3]

At a hearing on Chief Johnson’s proposal, Sheriff Hall—the head of the entire local county jail system—testified in support of the Nashville Defender’s proposal, explaining to the judges that he could not feasibly prevent Covid-19 outbreaks in his jail facilities without a significant reduction in the jail population. Dr. Jennifer Gaddy, Assistant Professor of Medicine, Pathology, Microbiology, and Immunology at Vanderbilt University Medical Center, also

testified at the hearing on behalf of the Nashville Defenders proposal. She explained to the judges how an outbreak within the jail could quickly spread to the Nashville community at large, given how many individuals cycle in and out of the local jail system each day. The Davidson County judges rejected the proposal, ordering instead that each request for relief be heard on a case by case basis.

As a result, over the last year, hundreds of individuals incarcerated in the local Davidson County jails have tested positive for Covid-19, and many hundreds more have been quarantined.[4] At least one person in the custody of the Davidson County jail system has died of Covid-19,[5] although that number could be an underestimate, as it does not account for individuals who contracted Covid-19 while incarcerated at a Davidson County jail but later died of the virus after having been released from custody. The Nashville Defender’s Office did not give up trying to de-densify the jails, instead continued filing motions and arguing relentlessly on behalf of incarcerated clients to try to gain release from jail. We also worked with the District Attorney’s Office to secure agreed releases and lowered bond amounts.

Even though the city of Nashville has reopened our local jail facilities are still plagued by the effects of the Covid-19 pandemic. Incarcerated persons are still contracting the virus while in custody. The mandatory quarantines that come with an exposure to Covid-19 still inhibit people in custody from appearing in court or visiting with their families. The Covid-19 pandemic has magnified many of the problems that have existed in the criminal legal system; problems that public defenders and their clients have always understood to exist. We know that by its design the congregant environment of local jails is detrimental to the health of incarcerated individuals, particularly those who have underlying medical conditions, which constitutes approximately half of the entire incarcerated population in state prisons across the United States.[6] We also know that we could safely, drastically reduce the number of individuals incarcerated in local jails by implementing bail reform and properly resourcing services for mental health and addiction. As we look towards the horizon of what the criminal legal system looks like post-Covid-19, armed with the lessons learned during the pandemic, The Nashville Defender’s office is renewing our commitment to fixing this fundamentally dysfunctional system, both in Nashville and beyond.

STAY TUNED FOR PART 2: “The Fight for Access and the 6th Amendment”