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Department of Justice Directed to Consider Risks of COVID-19 for Each Criminal Defendant When Arguing Bail

On April 3, 2020, and April 6, 2020, United States Attorney General William Barr issued two related memos directing the DOJ to consider, in light of the COVID-19 pandemic, the DOJ’s obligations to protect both the federal inmate population and the public when considering whether to detain or continue to detain federal criminal defendants, and to consider each defendant’s individual susceptibility to COVID-19 as a “significant factor” in every bail consideration. This impacts every criminal defendant, but has particular relevance to white collar defendants.

On April 3, 2020, Attorney General Barr issued a memo emphasizing the DOJ’s obligation to protect vulnerable inmates while carrying out its “duty to protect the public,” in light of the particular dangers posed by the COVID-19 pandemic. The memo recognized the spread of COVID-19 at certain federal prisons, including FCI Danbury (CT), FCI Elkton (OH), and FCI Oakdale (LA), each of which has been described as an “outbreak” by various news outlets.

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) authorized the AG to expand the numbers of federal inmates considered for home release upon the AG’s finding of emergency conditions “materially affecting” Bureau of Prisons operations. On April 3, AG Barr exercised his emergency authority, made that finding, and ordered the DOJ to begin implementing new standards designed to protect the “most vulnerable inmates at the most affected facilities.”

As a corollary, on April 6, AG Barr issued another memo premised on the same notions of inmate and public safety and ordered the DOJ to take into account in “each case” the risks of COVID-19 when considering and litigating bail for pretrial detainees. These considerations now include increased consideration of “medical risks associated with . . . the COVID-19 pandemic.” Violent gang members and child predators are among the criminal defendants deemed too dangerous to the public to be released even under the new directive, however.

But DOJ lawyers have now been instructed to “consider not seeking detention” “specifically, for those defendants who have not committed serious crimes[,] who present little risk of flight (but no threat to the public) and who are clearly vulnerable to COVID-19 under CDC Guidelines.

In other words, each individual defendant’s particular susceptibility to COVID-19 must now be considered as a “significant factor” in every federal case in which bail is being litigated.

This, of course, applies to every criminal defendant, but this has particular relevance to white collar defendants who are in many cases accused of nonviolent crimes; pose no safety threat to the public; and are often aging executives, doctors, etc., many of whom have underlying health conditions making them particularly susceptible to COVID-19.

We will continue to monitor this wide-reaching new federal directive and its effect on our practice and clients.

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