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Law360 (March 20, 2020, 2:02 PM EDT) -- House Judiciary Committee Chairman Jerry Nadler demanded that the U.S. Department of Justice immediately release vulnerable prisoners and resist incarcerating more people during the coronavirus outbreak, saying that the "DOJ must act now to save lives."
Nadler stressed in the letter Thursday to Attorney General William Barr that the Federal Bureau of Prisons should release to hospitals anyone in custody testing positive for COVID-19, advise U.S. attorneys to desist from making arrests unless necessary to avoid a specific violent attack, and "do all they can to release as many people as possible who are currently behind bars and at risk of getting sick."
"If the Department of Justice does not act aggressively to address the COVID-19 threat, federal jails and prisons could quickly become epicenters of the COVID-19 pandemic," Nadler said, noting there are 175,000 prisoners in BOP custody and 75,000 in pretrial detention.
Despite the declaration of a national emergency and adjustments to charging policies by state and local prosecutors, "it appears that it is 'business as usual' in many U.S. attorney's offices," Nadler said. "If true, this is deeply distressing."
Pending warrants should be recalled in all but exceptional cases in favor of summons, prosecutors should refrain from seeking to revoke existing bail conditions, and arrests for probation violations "should be barred."
"Line lawyers should not be reflexively seeking detention in court," Nadler wrote, saying prosecutors should consider both if that individual "poses a risk of serious injury to a reasonably identifiable person" and whether the person they seek to imprison has any health conditions "that make them vulnerable to COVID-19 infection."
Nadler also called for BOP to reassess whether it could release all prisoners within 36 months of completing their sentence to serve their time outside the walls of correctional institutions. Further, he added, "DOJ should use all available powers and authorities," including clemency, commutation, compassionate release and parole to reduce the concentration of prisoners.
Beyond using existing levers of power to drain the number of federal prisoners in custody, Nadler called for novel, unspecified ways to lower the prison population.
"Where possible, DOJ should create new emergency mechanisms to reduce imprisoned and incarcerated populations," Nadler said.
In recent days, prosecutors in the Southern District of New York, which overlaps Nadler's district, have repeatedly sought to jail newly arrested individuals and revoke at least one man's bail.
Mark Scott, recently convicted of conspiring in a $400 million cryptocurrency scam with "Cryptoqueen" Ruja Ignatova, was ordered jailed on March 12 after prosecutors sought to detain him for violating the terms of his release and because Scott's friend, who ponied up $750,000 in bond, wanted out of the agreement. Scott was ordered detained pending sentencing.
SDNY prosecutors also succeeded in jailing several gang members arrested in a sweep on Wednesday, arguing in the case of one defendant that his alleged crimes of racketeering conspiracy and attempted assault, in addition to his alleged association with a violent gang, outweighed the health concerns posed by coronavirus and the man's asthma.
The congressman's letter comes in tandem with a plea by a coalition of federal defenders, who have been agitating for goals similar to those espoused by Nadler.
"The COVID-19 global pandemic has turned our nation's jails and prisons into ticking time bombs," the defenders wrote in their Thursday letter. Both defense attorneys and their imprisoned clients "are in grave and immediate danger" and the failure to act "may well be a death sentence for many."
--Editing by John Campbell.
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