We are in unprecedented times, facing a collective threat that demands we rapidly explore new approaches to ensure public well-being. Unfortunately, many of the measures that are essential to protecting public health have the unintended but direct consequence of eroding protections for victims of abuse while increasing perpetrators’ access to and control over their families. Victims of domestic abuse and their children are at higher risk in this time of “stay at home” than they have been for many years in Maine and across the country, and as we seek to address the current crisis, we must not forget the vital role our criminal justice system plays in their safety.

Like other states, Maine is working to reduce and protect institutionalized populations, including those who are incarcerated. Even before the first COVID-19 case was detected in Maine, the Maine Coalition to End Domestic Violence and our regional members have fully supported efforts to reduce the mass incarceration of people affected by substance use disorder and unaddressed mental health needs, and we support current efforts to mitigate the risk to those individuals and to all who are incarcerated alongside them.

At the same time, we know that some detained within our local and state facilities have caused real harm to their partners and families, and that those victims potentially face serious danger if those offenders are released. Other states and nations have seen domestic violence crimes rise precipitously in the wake of COVID-19, as victims are made vulnerable by requirements to stay indoors and by increasingly constrained social safety nets. In our right and appropriate efforts to reduce the risks to those incarcerated in Maine’s jails and prisons, we must not lose sight of the risks faced by victims in our communities, about whom much public concern has been expressed recently.

Our domestic violence helpline fielded a call last week from a survivor who was desperately seeking shelter (even understanding its communal nature) because she’d just received a call from the jail that they were releasing her abuser the next day to her address. She was scared. How many survivors will feel compelled to put their own health and that of their children at risk after receiving this same call in the coming weeks?

Jails are using their furlough authority to release offenders to reduce the jail population in the face of the pandemic, which is appropriate in some cases. However, there must be an individualized assessment of each case where there is an identifiable crime victim to thoroughly consider how any furlough would affect that victim. When the safety of the victim is disregarded in these decisions, the potential exposure of an abusive person to COVID-19 while incarcerated will outweigh a victim’s risk of further abuse and violence or – as in the case of the victim who called seeking shelter – exposing their own health to the same risks of communal spread that the jails are attempting to avoid by releasing inmates.

We also have reports of our courts modifying or eliminating bail at rapid rates. With all other criminal court activity canceled until at least May 1, the Maine Commission on Indigent Legal Services has notified its members that they will be paid to file motions to amend bail to seek the release of defendants being held pretrial. Last week, this included a defendant who was being held because he violated his probation by perpetrating a Class A domestic violence aggravated assault. He had been on probation already for a felony domestic violence conviction. His $20,000 bail was eliminated, and he was released on personal recognizance and a promise to stay home.

We call on our partners in the criminal justice system and our communities to proceed more thoughtfully. For many domestic abuse victims, the incarceration of their abuser was the original form of social distancing – a mechanism for our communities to remove a known threat from the victim’s sphere to mitigate the risk to them and let them heal. In this way, the start of an erosion of the criminal justice system response to domestic violence in multiple areas of the state just as victims are ordered to “shelter in place” is a particularly cruel irony.

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