Attorney General Memo: Consider COVID-19 In Bail Decisions

The Federal Docket

April 12, 2020

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.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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