AG Barr Tells Prosecutors To Consider Pandemic A Bail Factor

By Mike LaSusa
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Law360 (April 6, 2020, 9:18 PM EDT) -- Attorney General William Barr told federal prosecutors Monday to take the COVID-19 pandemic into account when deciding whether to seek pretrial detention for criminal defendants.

In a memorandum to U.S. attorneys and top officials of the U.S. Department of Justice, Barr underscored that government lawyers should continue to abide by the Bail Reform Act and keep the safety of the broader public as their highest priority.

"When you believe a defendant poses a risk to the safety of any person or the community at large, you should continue to seek remand as zealously today as you would have before the pandemic began, in accordance with the BRA's plain terms," the attorney general said. "Protecting the public from criminals is our paramount obligation."

But Barr said prosecutors should consider the pandemic as a factor, especially in cases where the defendant presents little risk of flight or harm to the community or in cases where the defendant is particularly susceptible to COVID-19.

"Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein," the attorney general said. "It also presents risk to the individual being remanded into custody — risk that is particularly acute for individuals who are vulnerable to a serious infection."

Barr's memo also said prosecutors should use the same analysis when evaluating virus-related petitions for release from incarcerated defendants.

The guidance from the attorney general comes as justice systems around the country deal with the fallout from the COVID-19 outbreak, including how to handle incarcerated individuals.

The Supreme Court of Pennsylvania said Friday that county jails and prisons in the Keystone State don't have to release large numbers of prisoners in response to the novel coronavirus, but they may have to consider releasing some if the lockups are too crowded to stop the spread of the disease.

Massachusetts' high court on Friday made it easier for judges to free inmates who are awaiting trial, citing the "urgent and unprecedented" public health crisis prompted by the virus.

The move, however, fell far short of the type of widespread release of inmates that public defenders had called for to avert the possibility of the state's prisons becoming overrun with the virus, leaving inmates with nowhere to turn for relief.

Also on Friday, a federal judge in Massachusetts agreed to release a handful of U.S. Immigration and Customs Enforcement detainees, citing the urgent need to reduce the jail population amid the COVID-19 pandemic and vowing to review 10 cases per day as part of a lawsuit brought by civil rights groups.

On the other hand, the same judge had previously said that the pandemic is not cause to "empty jails."

--Additional reporting by Jody Godoy, Chris Villani, Matthew Santoni and Brian Dowling. Editing by Jill Coffey.

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