Prosecutors push back on Bill Barr’s call to free inmates over outbreak

The U.S. Justice Department has been pushing back on releasing vulnerable inmates despite Attorney General Bill Barr’s orders to the contrary.

Calls to release inmates from federal prisons due to fears they could become infected with coronavirus have been resisted by prosecutors even as Barr has begun using expanded authority from the stimulus bill and ordered prison officials to speed up the process of sending some inmates to home confinement.

(Image: White House screenshot)

“We are experiencing significant levels of infection at several of our facilities,” Barr said in a memo on Friday. “We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”

“The CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons,” Barr wrote. “I hereby make that finding and direct that … you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities.”

The number of inmates and prison staff who have been infected with COVID-19 has been rising, with 91 federal prisoners testing positive as of Friday, an increase from 75 the day before, and the number of prison staff infected rose from 39 to 50 in the same period, according to Politico.

According to the Bureau of Prisons, following Barr’s directive last week to release older inmates who “no longer pose a threat” and to speed up the process for others, 522 inmates were moved to home confinement.

But in the wake of Barr’s orders and the rush by some states like New York and California to free non-violent offenders, prosecutors have been arguing in cases being brought across the nation against the move.

According to the Washington Free Beacon:

Court documents show federal prosecutors have contended that judges cannot force the government to put prisoners on home confinement. They have urged courts to deny bond to defendants who are in jail awaiting trial. They have suggested that some inmates with pre-existing medical conditions would be safer in prison than at home. And they have expressed skepticism about claims of virus-related illness among people facing incarceration.


Barr’s directive on Friday addressed coronavirus outbreaks in prisons including in Danbury, Conn., Oakdale, La., and Elkton, Ohio. Dozens of prisoners at the Oakdale facility have reportedly become sick and five have died since March 28, prompting 59-year-old Harold Lee to ask a federal court for release on home confinement.

Lee, who was sentenced in 2018 for a bank fraud conviction, needs a breathing machine to sleep but a federal prosecutor said in a filing last week that the inmate’s concerns “are based entirely on speculation and generalized fear.”

Prosecutors have also resisted efforts where the appeal has been made from an inmate who is at a facility that has not even reported any positive cases of the coronavirus. And, in some cases, like the one of a 78-year-old in Michigan awaiting trial on drug charges, though age is a risk, prosecutors argued that the prison may be safer.

“An argument can be made that he potentially is safer where he is – sheltered in place in a facility that has the ability to control people’s interactions, screening of people coming in from the outside,” they wrote in a court filing.

President Trump made it clear last week that he did not support the mass release of prisoners due to fears over the global pandemic.

Some people are getting out that are very serious criminals, in some states. And I don’t like that. I don’t like it,” Trump said during a coronavirus White House briefing on Thursday. “But it’s a city or state thing in certain cases, as you know. I think maybe Philadelphia comes to mind. … We don’t like it. The people don’t like it. And we’re looking in to see if I have the right to stop it in some cases.”

Barr’s latest memo addressed the concerns over public safety.

“While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public,” he wrote. “That means we cannot simply release prison populations en masse into the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses.”


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