Sunday, March 29, 2020

The CARES Act & federal criminal defendants

What’s in the CARES Act for people facing federal criminal charges?

Section 15002 of the Act includes emergency provisions that will allow our clients to waive their physical appearance and consent to appear by video teleconferencing or telephone conferencing for the following proceedings:
  • initial appearance
  • arraignment
  • detention hearing
  • preliminary hearing
  • waiver of indictment
  • Rule 40 appearance
  • misdemeanor plea and sentencing
  • probation/supervised release revocation proceedings (including pretrial release)
  • some juvenile proceedings
  • felony plea (“if the judge in a particular case finds for specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice”)
  • felony sentencing (ditto the above findings requirement)
  • juvenile plea, sentencing, or disposition (ditto the above findings requirement)

Is this effective immediately?

No, it will only come into effect upon (1) certain findings by the Judicial Conference of the United States, followed by (2) certain findings by your local district court. Check your local district court's website over the next few days.

Does my client have a say in this?

The Act states that “[v]ideo teleconferencing or telephone conferencing authorized [by the bill] may only take place with the consent of the defendant, or the juvenile, after consultation with counsel.”

How long does this thing last?

Either 30 days after the date on which the national emergency declared by the President terminates, or until the Judicial Conference says so.

In the meantime, the Act provides for the local district court to review and determine whether to extend the authorization every 90 days.

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