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AG Barr: Prosecutors, BOP Should Consider COVID-19 Crisis in Determining Bail, Early Release

Several current and former federal officials recently sent letters to the President and the Attorney General urging action to protect persons in custody or facing arrest and detention during the COVID-19 crisis. In response, Attorney General Barr has issued separate directives to all U.S. Attorneys and DOJ Department Heads and to the Director of the Bureau of Prisons (BOP). This guidance comes as justice systems across the United States are dealing with an increasing rate of infection among incarcerated individuals and facility staff, and a flood of petitions seeking early release or reconsideration of orders denying bail.

In his memorandum to DOJ officials on litigating pretrial detention issues during the current health crisis, Barr stressed the “paramount obligation” of federal law enforcement to protect the public from violent offenders, including gang members and child predators, and urged prosecutors to consider the pandemic as a factor in bail determinations. The advisory directs that detention should not be considered “to the same degree we would under normal circumstances – specifically, for those defendants who have not committed serious crimes and who present little risk of flight (but no threat to the public) and who are clearly vulnerable to COVID-19 under CDC Guidelines.” In support, Barr states that each time a new person is added to a jail, it brings the risk of infection to facility personnel and those already incarcerated, as well as serious risk to the health of individuals who may be vulnerable to the virus based on age or a preexisting medical condition.

In a separate memorandum to the Director of the BOP, the Attorney General noted the “significant levels of infection at several of our facilities,” which requires prompt action to address the growing crisis. Acting based on new authority granted to him under the recently enacted CARES Act to address “emergency conditions,” Barr directed BOP to review all inmates, beginning with those at facilities most affected by the spread of COVID-19, to identify those deemed suitable for home confinement and to “immediately process them for transfer,” following a 14-day quarantine at a BOP facility, or at the residence to which the inmate is being transferred. Barr cautioned BOP that, in making these determinations, it “not inadvertently contribute to the spread of COVID-19 by transferring inmates from our facilities.” As he did in the guidance to the U.S. Attorneys, Barr reminded the BOP that it not only has a responsibility to protect those in custody, but an obligation to protect the public and the law enforcement community. He stated that “this pandemic has dramatically increased the already substantial risks facing the men and women who keep us safe,” noting that it is “impossible to engage in social distancing, hand washing, and other recommended steps in the middle of arresting a violent criminal.”

Jackson Lewis P.C. © 2020

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About this Author

Paul V. Kelly, Jackson Lewis, white collar criminal defense lawyer, internal investigations attorney
Principal

Paul V. Kelly is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has extensive experience in white collar criminal defense, internal investigations, complex civil litigation and crisis management. Mr. Kelly is the firm’s White Collar and Government Enforcement Practice Group Leader. A former sports industry executive, he is also one of the firm’s Collegiate and Professional Sports Practice Group Leaders.

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