Day 3: FPD COVID-19 Statement

By Melody Brannon
Kansas Federal Public Defender

Mar 17, 2020

In response to increasing COVID-19 concerns, the Federal Public Defender believes that our highest obligation to our clients is to slow the spread of the pandemic. We have taken precautionary measures that we describe below. And we are appreciative to the federal district court for suspending all non-emergency hearings, including jury trials and grand jury proceedings, and allowing for some appearances by video.

Our primary concern now: the spread of COVID-19 in the jails. We need to stop the flow of people into the jails, and where possible reduce the population. This is beyond dispute: keeping people in jail presents a grave danger to public health, both for those in custody and for jail personnel, who return to the public and to their own families every day. Jails are incubators for COVID-19. Once it takes hold inside the walls, the virus will quickly travel back into the community.

The Bail Reform Act authorizes judicial officers to order temporary release for a “compelling reason.” 18 U.S.C. §3142(i). Nothing could be more compelling than this public health crisis. We expect the landscape on this front—within the pretrial holding facilities—to change rapidly. Soon we will ask the court to consider release of medically vulnerable or compromised clients or to expedite the release of those who were slated for release in the next few months.

Thank you to the United States Marshal Service for sharing information about jail COVID-19 policies. BOP advises “admission of new inmates will continue,” so the health of the detainees will directly affect the health of the BOP population. We ask the Marshal to take these steps:

§ require all facilities who contract with the USMS to daily publish (effective today, March 17, 2020) the number of people—both detainees and personnel—who have:

screened or tested positive for COVID-19 symptoms;

tested positive for COVID-19;

been isolated or quarantined within the facility; or

been hospitalized outside the facility.

§ refrain from serving outstanding arrest warrants unless there is an imminent risk of violence;

§ refuse to house any person in USMS custody in a facility that has not implemented adequate precautionary measures to slow the spread of the contagion, identify those at risk of infection, and properly treat those at risk:

this should include, at a minimum, that the facility provide free soap, alcohol- based hand sanitizer, disinfectant, and masks;

it should also include effective individual isolation within the facility, and anyone who must be quarantined should be removed to a hospital.

§ require each facility to provide or allow installation of adequate video-conferencing capability for attorney-client visitation.

Likewise, we appreciate the U.S. Attorney’s caution in going forward. Besides the measures already taken, we ask the USAO to:

§ suspend or discourage arrests for offenses that do not involve an imminent risk of violence;

§ where immediate action is necessary, proceed by summons rather than by arrest; each arrest increases exponentially the number of people subject to exposure, including law enforcement;

§ where pretrial detention is at issue, rethink the criteria for recommending detention or house arrest, and consider recommending fewer conditions to protect probation officers from unnecessary risk;

§ consider temporary release or house arrest for those currently in custody who are at high risk because of compromised immune systems, age, or other medical vulnerability; and

§ do not obtain or review any recorded detainee communication, including email, phone, and videoconferencing.

The FPD continues to closely monitor our clients’ circumstances. We have gone to full-time mandatory remote work; closed our physical offices, with one duty attorney at each courthouse; and suspended in-person jail visitation (except for emergencies). We are working on new ways to safely communicate with our clients who remain in custody.

The measures already implemented and those requested above are critical to public health. It is no longer a question of just protecting ourselves, but protecting others who are at risk, including our indigent clients in custody, courthouse staff (including janitorial services), courthouse security, jail and law enforcement personnel, attorneys, and the court.