While prison and jail inmates with underlying health conditions fight for compassionate release or reduced bail during the COVID-19 pandemic, many prosecutors are continuing to raise baseless and dangerous arguments that ought to draw the attention of their state bar committees. My personal favorite, which any judge with access to a reliable news source from the past two months should reject out of hand, is the risible claim that medically vulnerable inmates are safer in prisons than they would be in the outside world. Except for cases involving white collar offenders, where the government often does not object to the defendant’s release, I have seen very few federal cases where prosecutors did not make this ridiculous argument.
Another such argument is described by Sarah Stillman in this week’s issue of The New Yorker:
Prosecutors [in Orleans Parish, Louisiana] opposed some bond reductions, especially for defendants without a home address, arguing that, if they were released, they would “pose a threat to the general public by potentially spreading the virus to others.” This logic was pernicious; according to an open letter written by the dean of Tulane’s public-health school and other experts, the longer the parish delayed releases, the more genuine the threat of mass infection in the jail was—and thus the more likely it would be spread to the public.Sarah Stillman, “Compassionate Release,” The New Yorker (May 25, 2020)
Stillman also notes that the Orleans Parish D.A.’s office “said that it has instructed prosecutors to stop making this argument in bond hearings.” However, it is clear that federal prosecutors have received no such instruction. To the contrary, even in cases involving non-violent and elderly or medically vulnerable offenders, U.S. Attorney’s Offices are still telling judges that it would somehow benefit the public to keep those offenders locked up in crowded and unsanitary facilities where the virus spreads like wildfire.