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April 7, 2020

"We’ll see many more covid-19 deaths in prisons if Barr and Congress don’t act now"

The title of this post is the headline of this new Washington Post op-ed authored by three federal public defenders, Lisa Freeland, David Patton and Jon Sands. Here are excerpts:

The numbers of covid-19 cases in the Bureau of Prisons are rising exponentially, at a pace far surpassing the U.S. population at large....  And because testing has been grossly insufficient, these numbers are almost certainly an undercount. 

As federal public and community defenders, we represent the majority of those charged with federal crimes.  We are witnessing the public health crisis firsthand.  Many of our clients fall into the category of people the Centers for Disease Control and Prevention deemed particularly vulnerable to covid-19....  Most of them were convicted of nonviolent offenses.  They must be safely released under public health protocols, some even temporarily, to spare them a high risk of death.

It is too late for the crisis to be entirely averted, but the worst can be prevented if Congress and Attorney General William P. Barr act with urgency.  So far, however, Barr and federal prosecutors have opposed even modest efforts to reduce the prison population.  In courtrooms across the country, when lawyers seek bail or compassionate release for vulnerable people accused or convicted of nonviolent offenses, federal prosecutors have vigorously opposed the requests — even in cases where people’s sentences are near completion.  In nearly every case, prosecutors are making the same argument that Barr advanced in a recent statement: that inmates are safer in prison than they would be at home. It is an absurd claim, contradicted by science and fact....

The attorney general has the authority to rapidly transfer vulnerable people to home confinement; Congress expressly equipped Barr to use this authority broadly with passage of the Cares Act.  But for reasons we cannot fathom, he failed to immediately use this lifesaving authority.  On March 26, Barr issued a policy that purported to expand the use of home confinement but, rather than helping to release people, erected new hurdles to transferring our clients to safety.  On April 3, he issued a memorandum full of mixed messages.  Although he directed the Bureau of Prisons to act “with dispatch” to increase the use of home confinement, he named only three prisons and “others similarly affected” as deserving priority.  He still does not seem to get it: Every prison and jail requires immediate attention.  Altogether, Barr’s guidance has been muddled and arbitrary, bearing little connection to the enormity of the crisis or threat to public safety.

Because Barr is obstructing reasonable efforts to release vulnerable people, Congress must act. Three simple, temporary provisions that could be set to expire after the covid-19 emergency passes would do enormous good.  First, bail should be presumed for anyone awaiting trial or sentencing absent credible evidence that the person poses a specific threat of violence.  Second, for anyone already sentenced, judges should consider temporary release for the duration of the public health emergency.  Third, vulnerable people seeking court-ordered compassionate release should not be subject to Bureau of Prisons administrative hurdles. 

April 7, 2020 at 12:30 PM | Permalink

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