The reduction of Philadelphia's prison population—as a measure to control the spread of COVID-19—is picking up steam after a start that lagged behind other county jails in Pennsylvania. That's because, after weeks of friction, court leaders and the District Attorney's Office are finally on the same page, court watchers said.

In the weeks that followed the Pennsylvania Supreme Court ordering nearly all judicial services be shut down as a means of combating the coronavirus, many of the state's largest court systems reduced their prison population by 20% or more. In Allegheny County, the number of people in the local jails dropped by nearly 30%, between March 1 and March 31. In Philadelphia, however, the prison population reduction remained at less than 10% by the middle of last week.

A protocol the First Judicial District put in place April 1 has sped things up—according to The Philadelphia Inquirer more than 235 prisoners were released last week. But, in a jurisdiction with one of the most progressive prosecutors in the country, and a court system that has for several years been working to decrease the local prison population, why the lag?

Interviews with court watchers and statements from public officials paint a complicated picture of Larry Krasner, Philadelphia's outspoken progressive district attorney, and a court infrastructure more accustomed to deliberation and operating within the normal adversarial process.

And even now with the criminal justice partners all working together, some in the criminal defense bar feel the process is moving too slow.

"It's a step in the right direction for sure. It is something that was well past due, and I'm just glad something was finally put together," criminal defense lawyer Troy Wilson said. "The court should be commended because they're putting something together, but at the same time, it's not enough. Especially given the pernicious effects of the disease."

COVID-19 Spreads

By mid-March, as the coronavirus began to sweep across Pennsylvania, the governor reacted by ordering most businesses to close, and courts across the Keystone State began suspending services in an effort to adhere to strict social distancing guidelines. On March 16, Krasner announced his office was working with the public defender to review several types of cases that should be reviewed for early release to help expedite the release of inmates who did not pose a public safety threat, but were at risk of being infected by the virus.

The DA's Office issued two press releases in the following week urging court leadership to act more quickly to reduce the jail populations. The press releases said criminal justice partners were continuing to identify groups of inmates who should be reviewed for early release, but that they were still seeking guidance from the court about filing emergency motions.

Then on April, 1, First Judicial District leadership announced it would be implementing a new protocol to review cases on an expedited basis, including bringing four judges into the courthouse to review cases three days a week. What some thought would have led to applause by the criminal justice bar resulted in a press conference with Krasner and Chief Public Defender Keir Bradford-Grey saying the court had dragged its feet for weeks on the issue, and that the new measures were still inadequate. Krasner also took particular issue with a claim by court leadership that it had waited several weeks for his office to turn over a detailed list of inmates who should be reviewed for early release.

According to Krasner, his office provided the court with seven lists, outlining a total of 1,997 cases that could be immediately reviewed. Sources have confirmed that his office did turn over a list to court leadership.

"Frankly, we would have done this two weeks ago. A week ago. We are not interested in looking too much in the rear view mirror, other than the public is entitled to know the real history of what happened here," Krasner said in the press conference.

"They received seven lists by emails, and yes everything we have to say is confirmed by emails," he said later in the press conference. "There were in fact, after days of heavy data work done by the DA's office in collaboration with the public defender's office, there were seven different lists that were provided to the court for them to consider."

The FJD, however, maintained that it needed more complete lists and motions in order for the court to rule on cases.

"It should be noted that at any point during these past three weeks, if the court had received such a list, it would have started a review process immediately," court spokesman Gabriel Roberts said in a press release soon after the press conference.

Tense Times

Although Krasner and Bradford-Grey also thanked the court for the latest procedures, the back-and-forth provided some insight into a relationship that appears to have been strained by the coronavirus crisis.

An internal memo from the District Attorney's Office provided additional insight as well.

An internal email from Assistant District Attorney Dana Bazelon on March 20 recapping the discussions with court leadership outlined what prosecutors saw as a court moving far too slow to their demands, and pushing back against the prosecutors' broad proposals. In one alleged exchange between prosecutors and court leadership about establishing a more sweeping process for releasing prisoners, Philadelphia Court of Common Pleas Judge Leon Tucker is quoted as saying that he would "shut the whole thing down" if prosecutors brought cases that did not clearly merit release.

The FJD declined to comment about the email.

Several court watchers, who declined to speak for the record, said the exchanges and emails spoke to a tension that has existed for some time between the court and the District Attorneys' Office, especially given the way his office's more progressive approach to criminal justice lessens the more conventional adversarial process that the courts are used to handling.

Since taking over as Philadelphia's chief law enforcement officer, Krasner's office has faced pushback from the Philadelphia and federal bench over its charging decisions, and faced additional scrutiny from judges. In one example, a Philadelphia judge appointed a special prosecutor over the district attorney's objections. That case is now being reviewed by the Supreme Court.

Last week, Temple University's Beasley School of Law professor Jules Epstein said he was hopeful the criminal justice partners would be able to push past these issues in a time of crisis.

"Whatever the dynamic is, whatever may have caused distrust, this is such a critical life-and-death situation that it is essential that all the parties sit down together and understand how each came to prepare its lists and then resolve them as quickly as possible so the maximum number of lives are saved, while still preserving community safety," Epstein said. "The most important thing is for each side to sit down with the others, assess the reliability, and then get to work as quickly as you can."

Another issue that could be affecting the relationship is the heightened political environment Philadelphia has found itself in recently. Krasner has been a topic of criticism by conservative pundits and leaders, including President Donald Trump. U.S. Attorney William McSwain of the Eastern District has also frequently criticized Krasner, including in late March when he appeared on the Fox News program "Tucker Carlson Tonight," and said the virus could be used by progressive prosecutors to push a decarceration agenda at the expense of public safety.

"Certainly the U.S. attorney here, McSwain, has kind of thrown fuel on the fire here by criticizing virtually everything that Krasner has done and stoking this fear that we're back to the crime waves of 20 years ago, which is untrue," Kairys, Rudovsky, Messing, Feinberg & Lin attorney David Rudovsky said. "Are local judges reacting to that? I don't know, but certainly that's in the background."

New Protocols

In March, while the criminal justice partners were hashing out how to handle the situation, some procedures existed for filing motions seeking release, but after individual lawyers began reaching out to judges, the court leadership asked that the requests be handled by only a few lawyers and judges. In short, according to members of the private defense bar, there was confusion.

As a leading member of the private defense bar, Ronald Greenblatt of Greenblatt, Pierce, Funt & Flores was involved in some of the talks between the FJD leadership and the DA's Office. He said that confusion was also exacerbated by how quickly orders were coming down from courts across the state reacting to the coronavirus outbreak. Still, at the meetings he attended, he said, there appeared to be a willingness by all sides to work together quickly on the issue.

"When I left that meeting March 12, I was under the impression that that Monday, it would happen," he said, noting, however, that on that Monday—March 16—the Supreme Court ordered declared Pennsylvania to be in a statewide judicial emergency, and the FJD suspended most court functions. Two days later, the justices ordered all courts to shut down almost entirely.

"You completely understand why they did that," Greenblatt said, adding, however, that the shutdown added another layer of difficulty to the situation. "I don't think this is about a lack of will."

By April, 1, the court announced its new protocol, which removes some of the motion practice Krasner had called "onerous," but still requires cases to be handled on an individual basis.

The new protocols involved opening four courtrooms on Tuesdays, Wednesdays and Thursdays, and prioritizes motions for release in cases involving economic crimes, cases where the minimum sentencing has already been served, and cases where bail is less than $25,000 and the defendant has no sex, gun, drug or violent offenses. According to sources, the court is also expected to put more judicial resources into the program as efforts to reduce jail populations continue.

In an emailed statement, the court's spokesman said the court has been encouraged by the progress that's been made so far.

"FJD employees and judges, along with staff from the Defender Association and District Attorney's Office, have been able to continue this important work during an especially difficult time," Roberts said.

After its first week in process, attorneys unanimously commended the criminal justice leaders for putting the program together, but many also said more needs to be done.

"We've lost a lot of time, at least several weeks," Rudovsky said. "As a result of that, we still have too high a population, in my view, to ensure the health and safety of inmates and prison workers."

Wilson also said he the juvenile population needs to be addressed.

"It has to be done for the juveniles too," he said. "Those kids are sitting there now, collecting dust and waiting to be infected, in my opinion."

Greenblatt said he was glad the criminal justice leaders were able to come together and develop a protocol. After the coronavirus crisis passes, he said, he hopes the broader situation could become the subject of a national conversation about incarceration and the city's response could be studied by academia.

"This is where we are now, and, do I wish we had done better? Yeah. I wish we had all done better," Greenblatt said.