Ninth Circuit Blog: Letter o' The Week: Defenders to A.G. Barr re COVID-19 and Decarceration

Santa Rita, hear our prayer.

Players: Hon. Attorney General William Barr. Letter from the Co-Chairs of the Defender legislative committee, Arizona Defender Jon Sands, Federal Defenders of New York Executive Director David Patton, DSAG Chair and WD Pa. Defender Lisa Freeland, the hard-working attorneys of the Sentencing Resource Counsel, and COVID-19 guru AFPD Miles Pope.

Facts: On March 26, 2020, Attorney General Barr issued a “Memorandum for Director of Bureau Prisons”, authorizing the release of federal inmates in response to COVID-19. See NYT article here.

Despite that step, barriers remained to release.

On April 1, 2020, the Defenders wrote to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.” Letter of Federal Defenders at 2, available here.

The Defender’s letter is chilling. It recounts the scientific findings that “prisons and jails [are] tinderboxes for the spread of disease . . . our jails are petri dishes.” Id. at 4. The Defenders emphasize the obvious: “CDC recommendations such as social distancing are impossible to achieve in our federal prisons and immigration facilities as things currently stand.” Id. (citation omitted).

With exhaustive documentation, the Defenders explain that a “chorus of public health experts has confirmed that immediate decarceration is necessary to avoid a humanitarian crisis in our prisons and jails.” Id. at 5.

This argument is buttressed by grim reality. For example, the Cook County Jail in Chicago went from two positive COVID-19 cases, to 101 confirmed cases, in a week. Id. at 6 (emphasis added). Similarly, the infection rate in New York’s Rikers Island is seven times higher than New York City, and seventy-five times higher than the United States. Id.

Why is a jail in Chicago, or in far-off New York, relevant to the Ninth? Well, as Governor Cuomo warned, “Look at us today . . . where we are today, you will be in four weeks or five weeks or six weeks. We are your future.” See article here.

New York’s future has started, in the Ninth.

On April 4, an inmate at Santa Rita Jail (where almost all NorCal federal inmates are held) tested positive for COVID-19. See article here. Staff have also tested positive at the jail. See Mercury News article here.

As noted above, in just one week a Chicago jail skyrocketed from two positive cases, to 101. (And 270 staff and detainees are positive as of April 4). Does a similar fate await Santa Rita, after its first two positive cases? The dozens of “orange” and “red” inmates housed there bodes ill. See Santa Rita Jail Corovirus Updates web page here.

Is this all just alarmist defense rhetoric? No: the deaths have already begun. Last week, the Northern District lost its first defendant to COVID-19 -- one of the post-conviction inmates who died in the FCI Oakdale facility in Louisiana. See Marshall Project article here.

That defendant had been sentenced by Judge Davila, and been represented by a NorCal CJA Attorney– who is also now hospitalized from COVID-19. The virus is here, our defendants have already died in federal custody: Santa Rita succumbing to wide-spread infection is not a question of if, but when.

Notably, over three hundred county inmates have been released from Santa Rita since the shelter-in-place was implemented on March 17. See article here. Those releases were the result of commendable and courageous joint action by District Attorneys, jail staff, and the defense bar.

By marked contrast, out of several hundred federal pretrial inmates incarcerated at Santa Rita, roughly half-a-dozen have been released since the beginning of shelter-in-place (and those only after fierce litigation).

(More county inmates have been released from Santa Rita, than federal inmates detained there!)

Who bears the blame for these frozen federal prisoners, now condemned to play viral Russian roulette? Who cares? It is a crisis too big for finger-pointing. What matters is fixing it. The solution is clear: a summit of the USAO, the federal defense bar, and Pretrial Services, to methodically identify the most vulnerable pretrial inmates and propose stipulated release orders.

If the county D.A's and P.D.'s can find common ground, we Feds can too. Let’s meet, and let’s act, before Santa Rita becomes the next Cook County Jail.