Prosecutors at the Department of Justice have repeatedly argued in recent weeks that being incarcerated does not put individuals at a higher risk of contracting the coronavirus — despite overwhelming evidence that detention facilities are among the most dangerous places to be during the current public health crisis.
The federal prosecutors’ arguments came in response to motions from federal public defenders in San Diego, California, on behalf of several of their clients requesting modified bail conditions in response to COVID-19, which is spreading rapidly through the country’s crowded jails and prisons.
The defendants seeking modified bail have not been convicted of a crime in connection to their current imprisonment and are currently facing nonviolent immigration or drug charges. Most are at high risk of becoming severely ill or dying if infected with COVID-19 because of their age or health conditions.
It is impossible for most incarcerated people to follow guidelines on social distancing, hand-washing and disinfecting surfaces. People incarcerated at San Diego’s Metropolitan Correctional Center and the Western Region Detention Facility (a private prison run by the GEO Group) have told defense lawyers they sleep in shared cells, often on bunk beds. They report inconsistent use of gloves and masks by guards and having access to neither. They don’t have reliable access to soap and are sometimes forced to buy their own from the commissary, which isn’t always well-stocked. They have observed other prisoners with severe coughs and fevers who have been unable to get timely medical care or are reluctant to report symptoms out of fear of losing their jobs.
“I feel like I’m going to die here,” one GEO detainee told federal public defender Joshua Jones.
When COVID-19 enters jails and prisons, it has spread much faster than in even the hardest-hit cities. At Rikers Island, New York City’s main jail complex, the rate of infection is nearly nine times higher than the city’s, according to data analysis by the Legal Aid Society.
As of Friday, there are at least 91 prisoners and 50 staffers in Bureau of Prisons facilities who have tested positive for the disease — a number that is probably an undercount due to extremely limited testing. Four people incarcerated at a federal prison in Louisiana and one in Ohio have died from COVID-19.
But DOJ attorneys in the Southern District of California have continued fighting the release of even low-level, nonviolent offenders. A defendant’s “request for release from custody is based almost entirely on the speculative prospect of a COVID-19 outbreak at the facility where he is being detained pending trial,” U.S. Attorney Robert Brewer Jr. wrote in a court filing last week, using similar language in at least two other cases. “Defendant’s speculation is both unsubstantiated and unwarranted,” Brewer continued.
One of these defendants is a man who has been imprisoned longer than the six-month maximum sentence for the charge he is facing. He was arrested in August and is currently facing an illegal entry misdemeanor — a criminal charge former Democratic presidential candidates Julián Castro and Elizabeth Warren have supported repealing. The man has been told that because of the coronavirus crisis, normal court calendars will not resume until April 16 — a date that is likely to get extended.
He was granted pretrial release on a $30,000 bond, secured by “two financially responsible adults with a $3,000 cash deposit.” Unable to meet those requirements, however, he asked to be released on a $10,000 bond secured by his signature.
“Because the Court cannot provide [him] with a bench trial in the near future, he is in a situation where he must either remain in custody for several months or plead guilty involuntarily to this misdemeanor charge because that is the only way for him to be released,” San Diego federal defender Eric Fish wrote in a court filing. Even if the man loses his misdemeanor bench trial, there is no way to give him additional time in custody since he has already served more time than the maximum sentence. “To keep him in custody longer without releasing him on bond would be a miscarriage of justice,” Fish wrote.
DOJ is also fighting for the continued imprisonment of a 56-year-old woman charged with attempting to illegally enter the country after being deported. The woman, who experiences high blood pressure and shortness of breath, was kidnapped when she was 14 years old and “held as a sex slave by a vicious drug kingpin for many decades,” federal defender Sean McGuire wrote in a court filing earlier this month. Her association with the drug kingpin, McGuire wrote, led to her convictions for conspiring to distribute cocaine.
She “recognizes that remaining out of custody is a matter of life and death, providing significant incentive for [her] to comply with any conditions of release set by the court and not risk a bench warrant and further detention,” her lawyer continued.
The woman was denied pretrial release at her initial court appearance in December. She asked the court on March 18 to reconsider her pretrial detention in light of the COVID-19 public health crisis. The government opposed her request, but she was granted pretrial release last week with a $20,000 bond.
To be sure, the Bail Reform Act instructs the Court to consider a defendant’s own ‘physical and mental health' ... but the general existence of a pandemic does not have significant bearing on that assessment. Robert Brewer Jr., U.S. Attorneyfor the Southern District of California.
Another defendant whose “speculation” about COVID-19 is, according to the government, “both unsubstantiated and unwarranted” is a 64-year-old man who has diabetes and high blood pressure. He had a heart procedure shortly before he was arrested in February on a felony charge of importing methamphetamine across the border. He can’t afford his $25,000 bond so he has remained in custody, even after a visit to a local medical facility because of his heart condition.
Earlier this month, he asked to be released on his own recognizance, citing the increased risk of severe illness or death from the coronavirus for people of his age and health condition. The government fought the request.
“To be sure, the Bail Reform Act instructs the Court to consider a defendant’s own ‘physical and mental health,’” Brewer conceded, referring to a 1984 law that established new conditions for pretrial detention or release, “but the general existence of a pandemic does not have significant bearing on that assessment.”
At the time, March 18, Brewer cited the fact that there were no reported COVID-19 cases at any facility operated by the Bureau of Prisons. But that’s no longer true. As of Friday, at least five federal prisoners have died after contracting COVID-19.
The U.S. Court of Appeals for the 9th Circuit is currently considering an appeal from a 73-year-old man who is being held in pretrial detention solely because he does not have a family member in the U.S. to stay with as he awaits trial. The man, a U.S. citizen, was arrested in February after Customs and Border Protection discovered methamphetamine in the gas tank of his car when he crossed into the U.S. from Mexico. He was initially denied pretrial release.
But in mid-March, after California’s governor declared a state of emergency, the government agreed he should be released on a $10,000 bond secured by his own signature. A magistrate judge granted the order but required him to live with a family member as he awaited trial. The man, who has no close familial relationships, asked a district judge for permission to live in a halfway house instead — he even found a facility that was accepting new residents.
According to the bond motion filed in the 9th Circuit, Assistant U.S. Attorney Michelle Pettit told the man’s defense lawyer that although she understood his age put him at high-risk of COVID-19 complications, she believed he was safer in jail than if he were released, especially to a halfway house. The district judge rejected the man’s request and he remains in prison.
Pettit was nominated last year by President Donald Trump to serve as a federal judge in San Diego; her nomination is currently pending before the Senate.
The Federal Defenders of San Diego summarized their efforts to get modified bail for their clients in a letter sent to Sen. Kamala Harris (D-Calif.) on Tuesday.
“The dramatic spread of COVID-19 on Rikers Island is an instructive lesson that we must learn from. In the Southern District of California, it is not too late,” Kathryn Nester, the group’s executive director warned. The U.S. attorney’s office “is uniquely positioned to save many lives in California, and we urge you to investigate whether they wield this power wisely and, if not, to take legislative action that will speed up the immediate release of as many inmates as possible.”
One possible fix, Nester proposed, would be amending the Bail Reform Act to include COVID-19 as an acceptable factor to consider when making decisions about pretrial release.
Read the San Diego Federal Defenders letter to Sen. Kamala Harris (D-Calif.)