AGs In A Pandemic: Neronha Talks RI Criminal Justice

By Peter Neronha
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Law360 (October 13, 2020, 5:35 PM EDT) -- The COVID-19 pandemic has brought new compliance risks and considerations for companies and individuals. In this Expert Analysis series, state attorneys general share their enforcement priorities.

Peter Neronha

Rhode Island is one of only a handful of U.S. states in which the attorney general plays a significant leadership role in the criminal justice system, overseeing all felony criminal prosecutions as well as civil matters on behalf of the state. Because of our dual mission, we have faced challenges brought on by the COVID-19 pandemic on multiple fronts.

COVID-19 has affected nearly every aspect of our daily lives, and the criminal justice system has been no exception. On our streets, in the courts, and within the corrections system, the coronavirus outbreak continues to change the way we interact with the public and carry out our law enforcement mission.

From the beginning, our challenge was clear. How could we make sure we were balancing important public safety and public health considerations within a system that can't stop or be taken offline, even for a moment?

Three core principles have guided our approach to addressing concerns specific to the criminal justice system. First, we sought to limit public health risks and the burden on the system as a whole by diverting — where possible — nonviolent and low-level offenders away from prosecution and toward alternative approaches that could better address the conduct.

Second, we worked to minimize the health and safety risks associated with arrests to everyone involved, including police officers, court personnel, attorneys and the individuals charged with crimes.

And third, we recognized the health risks to inmates, corrections personnel, and Rhode Island communities associated with the potential spread of COVID-19 in the state's correctional facilities and took steps to reduce those risks.

The threshold question for my office was always whether the early release of any inmate from the Adult Correctional Institutions, or ACI, the state's main prison complex, would be more or less likely to increase the spread of COVID 19, with corresponding negative effects on public health and the public health system.

We listened when, in early April, the state's top public health official determined that the early release of inmates housed at the ACI was necessary to prevent overcrowding and enable social distancing to help stop the spread of COVID-19.

An important condition of the Rhode Island Department of Health's recommendation was that anyone being released from the ACI would need to be released into a stable setting where they could quarantine for 14 days, with monitoring by the Department of Health.

Understanding these principles, my office, along with the Public Defender's Office and Department of Corrections, negotiated the early release of approximately 50 people who were both incarcerated for nonviolent offenses and scheduled to complete their sentences within 90 days.

Enforcing COVID-19 Executive Orders

In addition to keeping the criminal justice system running without jeopardizing public health, the pandemic posed another challenge. It was clear that social distancing, quarantine and isolation would be required to stop the spread of COVID-19 in our communities.

Rhode Island's governor, through a series of executive orders and supporting regulations, implemented measures to curtail and regulate business activity, limit public gatherings, and require quarantine and isolation of specific categories of individuals.

It was up to my office to address practical and legal issues and ultimately determine how to enforce these measures. We knew that criminal sanctions were not the answer, and that we needed another way to ensure compliance in the limited instances where attempts at voluntary compliance fail.

After carefully analyzing the potential scenarios, my office provided sensible enforcement guidance to all Rhode Island chiefs of police. This guidance, which continues to evolve with our changing reality, summarized the executive orders issued to date, clarified important distinctions between social distancing and quarantine and isolation, and explained the enforcement options available to law enforcement agencies. 

We started with the principle that, first and foremost, we should always attempt to educate individuals and businesses about the importance of complying with these critical public health measures and prioritize securing voluntary cooperation outside of the criminal justice system.

We advocated for and helped craft alternatives to criminal sanctions in the form of administrative monetary penalties, that are now available for violations of the social distancing, quarantine and isolation orders.

Law enforcement officials, as a measure of last resort to be used only for egregious or repeated violations, do have the option to issue a criminal summons or arrest a person for a violation of an order. Because of the health risks associated with the physical contact required to make an arrest, we guided law enforcement agencies to consult with my office prior to doing so.

We also helped establish a central processing location at one of our buildings for booking and arraigning individuals who might have contracted the virus, in order to limit exposure at police departments and the district court.

Crime Continues Despite the Pandemic

While we expected crime to decline as more Rhode Islanders stayed at home in the early months of the pandemic, we knew there would still be people committing offenses that would place them within the criminal justice system. In Rhode Island, except in the most serious felony cases, the decision whether to arrest someone for committing a misdemeanor or felony offense is made by a local police department or the state police.

Our willingness, along with our partners in law enforcement, to use detention more selectively during this crisis helped to further limit the number of people being incarcerated at the ACI.

Anyone arrested for committing a new misdemeanor or felony offense must be formally arraigned on the new charge, either at the police department before a bail commissioner or before a judge in the district court. In these instances, given the COVID-19 outbreak, we recommended that law enforcement consider releasing individuals on their own recognizance unless they were charged with a violent crime, including misdemeanor domestic violence crimes.

It came down to our ability to adapt quickly. We had to rapidly adjust our typical systems in the interest of public health.

My office does handle arraignments for very serious offenses — typically capital offenses, such as murder, sexual assault and child molestation. Under Rhode Island law, anyone charged with these offenses may be held without bail. In these limited number of cases, we have still asked that the defendant be held without bail where he or she poses a risk to public safety.

As we have all come to learn, the measures required to combat this crisis change weekly, if not daily. We remain in regular contact with our partners in law enforcement as we continue to provide necessary support and guidance.

While COVID-19 has certainly presented unique challenges for the criminal justice system, it has also presented opportunities for us to reflect on our policies and practices.

At the end of the day, my approach to making decisions is guided by the same two questions: Can we, and should we? Those simple questions invoke both an objective and a subjective analysis when confronting any decision.

I am confident that the decisions made by my office throughout the COVID-19 pandemic have reflected that approach.

Peter F. Neronha is the attorney general of Rhode Island.

The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio​​ Media Inc. or any of its​​ respective affiliates. This article is for general information purposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.

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