AG Barr Tells Prosecutors to Consider Pandemic Risks in Pre-Trial Detention Issues

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
April 7, 2020Updated: April 7, 2020

Attorney General William Barr has issued new guidance on bail decisions and other pre-trial issues, in order to assist federal prosecutors in their roles to mitigate risks of the CCP virus pandemic while protecting public safety.

In a memo (pdf) on Monday, Barr asked department heads and federal prosecutors across the nation to give “appropriate weight” to the “medical risks” associated with individuals who are placed into custody when making bail and pre-trial decisions.

“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,” he wrote. “It also presents risk[s] to the individual being remanded into custody.”

The memo appears to give prosecutors more flexibility in deciding when to seek detention for individuals who have not committed serious crimes, are of little risk of flight, and are vulnerable in accordance with the CCP (Chinese Communist Party) virus, commonly known as novel coronavirus, under federal health guidelines.

Yet he continued to emphasize the need to balance public safety with the risks of increasing the federal prison population during a time when CCP virus cases are on the rise.

“[C]ontrolling weight should be given to public safety, and under no circumstance should those who present a risk to any person or the community be released,” he wrote in the memo.

He underscored that the department still has its overriding obligation to protect the public and should continue to seek detention for individuals who have committed serious crimes and meet other conditions for custody under the federal law.

“Protecting the public from criminals is our paramount obligation,” he said.

A condemned inmate is led out of his east block cell on death row
A condemned inmate is led out of his east block cell on death row at San Quentin State Prison in San Quentin, Calif., on March 13, 2019. (Eric Risberg/AP)

Meanwhile, the attorney general also asked prosecutors to provide the same considerations to individuals who are already detained by awaiting trial, including assessing whether releasing the individual could pose a potential risk of spreading the virus to his or her community and whether the release would pose other risks to the public.

This comes days after Barr directed the Bureau of Prisons (BOP) to begin the processes to transfer vulnerable inmates from federal prisons to home confinement. In his order, he said that inmates in federal facilities hit hardest by the CCP virus should be given priority for home confinement. These facilities include Oakdale in Louisiana, Elkton in Ohio, and Danbury in Connecticut.

“For all inmates whom you deem suitable candidates for home confinement, you are directed to immediately process them for transfer and then immediately transfer them following a 14-day quarantine at an appropriate BOP facility, or, in appropriate cases subject to your case-by-case discretion, in the residence to which the inmate is being transferred,” he wrote in a separate memo (pdf).

The BOP and the Justice Department have been making a number of adjustments to adapt to the disruptions caused by the CCP virus pandemic. The department is also facing a number of lawsuits and calls from lawmakers and advocacy groups to vulnerable prisoners incarcerated in the federal judicial system.

There are currently 174,837 inmates held in federal prisons either run by the BOP or private corporations, according to the agency. More than 10,000 among this population are over the age of 60.

Currently, there are eight deaths and 241 confirmed among federal inmates, while 72 prison staff have tested positive for the virus as of Tuesday afternoon, according to the agency.