The Maryland Department of Public Safety and Correctional Services is no longer testing all incarcerated defendants for the coronavirus before bringing them to in-person court hearings, raising alarm among correctional officers, attorneys and others who interact with them in court.
More than two dozen inmates have been brought to court hearings from the Baltimore Pretrial Complex without receiving COVID-19 rapid tests beforehand, DPSCS acknowledged in response to questions from The Sun. The change occurred in December, as cases among Maryland inmates doubled.
“The vast majority of these untested people either refused to be tested, or were ordered to court in a timeframe that would not allow their test result to come back prior to transport,” said Mark Vernarelli, a department spokesman. “We strive to administer tests to every detainee and inmate prior to their transport to court.”
AFSCME Council 3, the largest state employees’ union, blamed persistent staffing shortages for the lapses in testing before court appearances. As Maryland began rolling out vaccinations, DPSCS lacked the staff to perform both the testing and vaccinations required, the union said.
“This is a reckless and clear disregard for everyone’s health and safety,” said AFSCME president Patrick Moran, who represents 30,000 state and university employees in Maryland, including in the Department of Corrections, Department of Juvenile Services, the Judiciary and the Office of the Public Defender.
Matthew Trigger, who works in the DPSCS Transportation Unit and is a member of the AFSCME local representing correctional officers at state prisons in Jessup, said it is “beyond disheartening when management chooses to increase our risk of exposure because we’re short-staffed.”
“Management should be taking every precaution and following strict protocols for inmates entering/exiting the facilities to minimize community transmission,” Trigger said in a statement. “We go into work and risk an exposure that could impact our family, friends and neighbors.”
Those still appearing in-person, mostly at the Eastside District Court on North Avenue, include defendants who have pleaded not guilty and requested non-jury trials during virtual hearings, as well as those facing charges of domestic violence and drunken driving.
Marci Johnson, president-elect of the Maryland Defenders Union, an AFSCME local representing public defenders, learned of the lack of testing this month. It has created an ethical dilemma for her members, she said: Prioritize their clients’ rights or their own health concerns?
“You really have to choose between your own health and safety and your client’s best interest,” Johnson said in a phone interview Friday. “It’s an impossible decision.”
Most aren’t willing to leave a client who wants a trial waiting behind bars, she said.
“They’re going to choose to have these trials, which is very concerning,” Johnson said.
Paul DeWolfe, Maryland’s Public Defender, said he had spoken with Public Safety and Correctional Services Secretary Robert L. Green about the issue, “and we both agree that coordination is needed to protect everyone involved in court proceedings and those with whom they come in contact.”
“Individuals have a right to refuse testing, and accommodations such as virtual proceedings or postponements have been offered,” DeWolfe said in a statement.
The corrections department sought and received guidance from state health officials about the testing practices, a decision made “with the purpose of making certain that health protocols are followed AND that detainees and inmates get to court on time as required by law,” Vernarelli said in an email.
But he also said the state never changed its policy: “We continue to test everybody who is headed to court unless they refuse or we have insufficient time to test prior to a court appearance.”
Zy Richardson, a spokeswoman for the Baltimore City State’s Attorney Marilyn Mosby, said prosecutors “are most certainly concerned” about the state bringing any inmates and detainees to court without testing them immediately beforehand.
“Such an approach jeopardizes our staff, our victims and witnesses, the judiciary, as well as the defense bar,” Richardson said in a statement.
Corrections officials continued to assure the Maryland Judiciary “as recently as 30 minutes ago” that they are making “every effort to provide COVID testing for defendants prior to bringing them to the Baltimore City District Court,” said Terri Charles, a court spokeswoman, in an email Friday afternoon.
Of the 1,188 transports of incarcerated people to court appearances in Baltimore since October, only 27 trips — about 2% — “involved an untested inmate or detainee,” Vernarelli said. He did not immediately respond to a follow-up question about how many of those trips had occurred since December.
“The Baltimore pretrial system is very large and high volume,” he said. “Even so, we do try to test every person prior to court transport once we know their court dates.”
Vernarelli also did not respond to a question about whether the practice is limited to Baltimore City.
Johnson, the Maryland Defenders Union president-elect, said the small number of defendants appearing in court in-person should make it manageable for the state to test anyone it transports.
“It could not be that labo-intensive,” she said.
All people arrested and taken to Central Booking in Baltimore are tested for COVID-19 in a tent outside before being allowed to enter, quarantined from others once inside and required to wear a mask for any in-person court appearances, Vernarelli said.
“Furthermore, we long ago reduced the number of people transported in a single vehicle in order to ensure that social distancing is followed,” he said. “We have made continuous, concerted efforts to protect our employees, detainees, and inmates and mitigate the spread of the virus.”
Just Us, the Maryland Alliance for Justice Reform, the Maryland Prisoners Rights Coalition and the ACLU of Maryland joined more than a dozen other groups in writing a letter to Gov. Larry Hogan last week, calling those efforts “incomplete or inadequate because of implementation failures.”
Citing the “dire situation that Maryland residents behind bars find themselves in during this pandemic,” they demanded “immediate and aggressive efforts to decarcerate Maryland’s jails and prisons.”
“We are familiar with the efforts taken to date by [DPSCS],” they wrote. “However, they are not enough, as demonstrated by the raging numbers of COVID positive cases in facilities and the rising death toll among the men and women confined and the staff.”