In response to increasing COVID-19
concerns, the Federal Public Defender believes that our highest obligation to our
clients is to slow the spread of the pandemic. We have taken precautionary
measures that we describe below. And we are appreciative
to the federal district court for suspending all non-emergency hearings,
including jury trials and grand jury proceedings, and allowing for some
appearances by video.
Our primary concern now: the spread of
COVID-19 in the jails. We need to stop the flow of people into the jails, and
where possible reduce the population. This is beyond dispute: keeping people in
jail presents a grave danger to public health, both for those in custody and for
jail personnel, who return to the public and to their own families every day.
Jails are incubators for COVID-19. Once it takes hold inside the walls, the
virus will quickly travel back into the community.
The Bail Reform Act authorizes judicial
officers to order temporary release for a “compelling reason.” 18 U.S.C. §3142(i). Nothing could be more compelling than this public health crisis. We
expect the landscape on this front—within the pretrial holding facilities—to
change rapidly. Soon we will ask the court to consider release of medically
vulnerable or compromised clients or to expedite the release of those who were
slated for release in the next few months.
Thank you to the United States Marshal
Service for sharing information about jail COVID-19 policies. BOP advises
“admission of new inmates will continue,” so the health of the detainees will
directly affect the health of the BOP population. We ask the Marshal to take
these steps:
§ require all
facilities who contract with the USMS to daily publish (effective today, March
17, 2020) the number of people—both detainees and personnel—who have:
screened or tested positive for
COVID-19 symptoms;
tested
positive for COVID-19;
been
isolated or quarantined within the facility; or
been
hospitalized outside the facility.
§ refrain from serving
outstanding arrest warrants unless there is an imminent risk of violence;
§ refuse to house
any person in USMS custody in a facility that has not implemented adequate precautionary
measures to slow the spread of the contagion, identify those at risk of
infection, and properly treat those at risk:
this should include, at a minimum,
that the facility provide free soap,
alcohol- based hand sanitizer,
disinfectant, and masks;
it should also include
effective individual isolation within
the facility, and anyone who must be quarantined should be
removed to a hospital.
§ require each
facility to provide or allow installation of adequate video-conferencing
capability for attorney-client visitation.
Likewise, we appreciate the U.S. Attorney’s
caution in going forward. Besides the measures already taken, we ask the USAO
to:
§ suspend or
discourage arrests for offenses that do not involve an imminent risk of
violence;
§ where immediate
action is necessary, proceed by summons rather than by arrest; each arrest
increases exponentially the number of people subject to exposure, including law
enforcement;
§ where pretrial
detention is at issue, rethink the criteria for recommending detention or house
arrest, and consider recommending fewer conditions to protect probation
officers from unnecessary risk;
§ consider temporary
release or house arrest for those currently in
custody who are at high risk because of
compromised immune systems, age, or other medical vulnerability; and
§ do not obtain or
review any recorded detainee communication, including email, phone, and
videoconferencing.
The FPD continues to closely monitor our
clients’ circumstances. We have gone to full-time mandatory remote work; closed
our physical offices, with one duty attorney at each courthouse; and suspended
in-person jail visitation (except for emergencies). We are working on new ways
to safely communicate with our clients who remain in custody.
The measures already implemented and those
requested above are critical to public health. It is no longer a question of just protecting ourselves, but
protecting others who are at risk, including our indigent clients in custody,
courthouse staff (including janitorial services), courthouse security, jail and
law enforcement personnel, attorneys, and the court.