April 6, 2020
Federal prosecutors have now been formally instructed to consider COVID-19 when deciding whether to oppose or consent to a defendant’s release on bond. On April 6, Attorney General Barr issued a memorandum to all U.S. Attorneys instructing them to give “appropriate weight” to the fact that the COVID-19 pandemic has created a new danger to incarcerating individuals.
Specifically, Barr’s memo instructs prosecutors to consider a defendant’s physical and mental condition under the Bail Reform Act and the medical risks posed to the defendant by his incarceration during the COVID-19 outbreak. As a result, AG Barr has directed prosecutors to consider not seeking detention where the defendant has not committed “serious crime,” presents “little risk of flight,” or who are “clearly vulnerable” to the novel coronavirus. AG Barr reiterated, however, that “controlling weight” should be given to public safety and that prosecutors should seek detention “as zealously today as you would have before the pandemic began” in cases involving particular types of defendants, such as sex offenders and gang members.
AG Barr also discussed how to consider motions for reconsideration from defendants in pretrial custody, emphasizing that, in such cases, the court has already made a finding supporting detention. Nonetheless, AG Barr’s memo directs prosecutors to consider consenting to the defendant’s release if the defendant is significantly at-risk from COVID-19 and will not put the community in danger if released.
Click here to read the DOJ’s memo.