Many incarcerated clients awaiting trial in federal court have contacted us to ask if they could be released from jail to avoid being infected with the COVID-19 virus. The answer is, “It depends…” It depends on a number of factors but it all comes back to the Bail Reform Act. That Act says a defendant should be granted pretrial release unless the judicial officer determines that release: (1) will not reasonably assure the defendant’s appearance for future proceedings or (2) will endanger the safety of another person or the community. The judge must consider whether any conditions of release would reasonably assure the defendant’s future presence and protect the safety of another person or the community. The judge may temporarily authorize release if “necessary for the preparation of the person’s defense or for another compelling reason.”
The first thing the judge will consider is the seriousness of the offense. Usually, the government must prove the defendant poses a danger to the community. But in certain cases (drug cases and violent crimes) the person is presumed to pose a danger just by what they have been charged with. In those cases, the defendant is the one who has to prove they ARE NOT a danger to the community. Even if it is not a serious offense, it can be made serious by other circumstances such as if the defendant tried to evade arrest.
What makes someone an objective danger to the community? The judge will consider the defendant’s criminal history. Does the defendant have multiple controlled substances convictions or multiple probation/parole revocations? The judge also considers whether the person is a life-long MidSouth resident or someone who has no significant ties to the area.
The judge will consider these factors and weigh them against the likelihood that the defendant is at risk of contracting the virus if they remain in custody. Some factors place a defendant at a higher risk of being affected by the virus. Age is one of those factors. The Center for Disease Control and Prevention currently indicates people over the age of 65 are at high-risk. Also at risk are those with underlying medical conditions, such as diabetes, heart disease, and high blood pressure.
But it is not enough, alone, that the defendant has a prior medical condition that places him at high risk for severe complications from COVID-19. If the defendant has the burden of proving he is NOT a danger to the community but has a troubling criminal history and the crime he is awaiting trial on is a very serious offense, it may not matter his age or medical condition. If the charge is a violent crime, his criminal history is bad and the evidence against him is compelling, the judge can find the defendant poses either a risk of flight or a risk of danger to the community, or both, and deny release even if the inmate has all the risk factors.
On the other hand, a defendant with a lesser criminal history, a less serious charge and who has documented medical conditions placing them at a higher risk for severe complications from COVID-19 may be able to show that the current pandemic eliminates their potential risk of flight or danger. Even then, the defendant is not likely to gain release without also showing that he is over 65 years old, that his physical condition has worsened in custody due to his health issues, or that his immune system has actually been jeopardized.
The government will show that the Bureau of Prisons has taken measures in response to the spread of COVID-19 and will argue that these measures decrease the danger faced by inmates. They include that social visits have been suspended, inmate movement has been limited to movement for medical reasons, most attorney visits are non-contact visits, staff travel and contractor access has been suspended and there is enhanced health screening of staff and newly arriving inmates. Asymptomatic inmates with exposure risk factors are quarantined. Symptomatic inmates with exposure risk factors are isolated and tested for COVID-19. The medical staff has been trained and are able to promptly identify and contain inmates with coronavirus-like symptoms, to isolate inmates who are sick with the disease, and to conduct contact investigations for coronavirus cases and quarantine contacts.
After detailing these measures, the government will argue that the fact that a new virus exists outside of the walls of the jail is not grounds to release a defendant or any of the other thousands of incarcerated persons in the United States. The appeals court in a recent Tennessee case noted, “while Congress has passed legislation in response to the COVID-19 pandemic, Congress has not, as of yet, specifically authorized the judiciary to release ‘high risk’ detainees or otherwise confront this potential issue.” In that case, the defendant’s motion for release was denied despite his health issues of diabetes, COPD, congestive heart failure, and bullous lung disease because his condition had not worsened and because the jail had taken various precautions to prevent the spread of COVID-19.
We are available to meet with concerned family members to see if their loved one is a candidate for release.