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Where and how are criminal defense lawyers making headway on COVID-19 bail motions?

By Stephanie Francis Ward

April 6, 2020, 9:48 am CDT

As the number of inmates and corrections officers with the coronavirus continues to grow across the country, the New Jersey Supreme Court came up with a unique approach—a March 22 order stated that all county jail inmates would be temporarily released, but prosecutors and the attorney general’s office could file individual objections with the court, explaining why an inmate would pose a “significant risk” to the safety of the public.

The New Jersey order—which was sparked by joint work from the state attorney general, the County Prosecutors Association of New Jersey, the state public defender’s office and the New Jersey American Civil Liberties Union—is rare. While various courts have issued orders that create ways to expedite bail hearings during the coronavirus pandemic, most are hearing the motions individually.

“Releasing a few people at a time, after litigating pretrial release conditions, is frankly too slow. It’s important work but not nearly enough. Once the coronavirus enters a detention center, it’s too late; it will spread like wildfire,” says Aaron Littman, a clinical teaching fellow at the University of California at Los Angeles School of Law whose academic work focuses on the rights of detained individuals.

In Cook County, Illinois, which includes Chicago, the criminal defense bar is relying on a March 23 court order to make COVID-19 based jail motions. Written by Judge LeRoy K. Martin, presiding judge of the Circuit Court of Cook County’s criminal division, it details an expedited bond process for inmates who are elderly, pregnant or have underlying conditions, such as asthma, diabetes or a heart condition.

Also included in the expedited bond process are inmates arrested for misdemeanors, nonviolent offenders, people who received bail, but can’t afford to pay and individuals who qualify for electronic monitoring but have no home to go to.

Cook County Circuit Court operations are limited to emergency matters, including bail reviews, and judges are available seven days a week to hear bail requests, the court announced March 13. Also, defense counsel can waive defendants’ appearances, to help promote social distancing.

“There are hearings going on at the criminal courts buildings and no written motions are required. I think the judges are hearing dozens of oral bail motions a day,” says Jeffrey Urdangen. A Chicago criminal defense attorney, he and others filed a motion with the court that resulted in Martin’s order.

“There inevitably was going to be a spread of this in the jail, and the situation is urgent,” says Urdangen, who is of counsel with Riley Safer Holmes & Cancila.

Indeed, by March 30, 134 Cook County jail inmates had contracted COVID-19, and 20 staff members tested positive for the virus, the Chicago Sun-Times reported.

In Davidson County, Tennessee, which includes Nashville, courts are reviewing cases for people who can be let out of jail, says Marsha Travis, director of standards and accountability for the Davidson County Sherriff’s Office. Daron Hall, the sheriff, sent a letter to state court trial judges March 27, asking for help in reducing the county’s inmate population to less than 1,000 people.

Police there are committed to giving citations, instead of making arrests, Hall wrote, and he’s provided the public defender and the district attorney with lists of people who could be considered for release, including the elderly, people who are pregnant and individuals who are medically high-risk.

“It’s important to realize that a lot of the inmates who are locked up are specifically at risk because of co-occurring conditions, and have years of drug use, so they already have compromised immune systems. Most jails have group housing, so it’s impossible to isolate people,” says Travis, president-elect of the American Jail Association.

At New York’s Rikers Island, 167 inmates had confirmed cases of COVID-19, the New York Times reported March 30.

“It’s not just a problem for people inside but an even bigger, broader public health problem, because jails do not have the equipment or staff to handle serious cases of COVID-19. These people will have to be sent out to hospitals,” says David Patton, executive director and attorney-in-chief of the Federal Defenders of New York.

He estimates that 700 federal inmates in New York risk death if they contact the coronavirus. Patton had hoped to work with the U.S. Attorney’s Office for the Southern District of New York to identify inmates who might be appropriate for temporary release.

“We did not make headway on that. So instead we have been going through case by case, making bail applications ourselves,” Patton says.

The Federal Defenders of New York, along with the Criminal Justice Act Panel, which represents indigent defendants who have a conflict with the public defender’s office, are handling approximately 90% of the Southern District of New York COVID-19 bail motions, Patton says.

His office created a template for the bail motions, and it includes information from a prison specialist physician. But counsel still needs to speak with inmates for specifics, and that’s more difficult than ever, Patton says, because the Federal Bureau of Prisons is on complete lockdown.

There is precedent in the Southern District of New York for releasing detainees due to the coronavirus risk. On March 6, U.S. District Court Judge Alison J. Nathan denied a bail motion made on behalf of Dante Stephens, who was arrested for gun and narcotics possession while he was on supervised release. Counsel then filed an emergency motion, and on March 18 Nathan granted bail with 24-hour home incarceration and electronic location monitoring for Stephens.

Nathan’s March 18 order notes that after her earlier ruling, there was new evidence that the arresting officer initially identified someone other than Stephens who was holding a bag with a gun at the time of his arrest. However, she wrote that even if changed circumstances didn’t compel reconsideration of the defendant’s bond conditions, the current public health crisis does constitute a compelling reason.

The March 18 order also noted that Stephens claimed it was difficult to communicate with counsel while he was detained, and things like jail crowding, delays in access to medical evaluation and rations on soap, water and clean laundry created a heightened risk for inmates to contract COVID-19.

Given the pretrial presumption of innocence, it makes sense to release some people from jail now, says Barbara L. McQuade, the former U.S. attorney for the Eastern District of Michigan.

“I don’t think we can just open the doors and let everyone out because the main reason you have people detained is that they are a danger to the community,” adds McQuade, a law professor at the University of Michigan.

She mentions domestic violence and sexual assault.

“What if you are a survivor of domestic violence or sexual assault, and the defendant is going to be released and coming back home to you? That can create some problems,” McQuade says. She said releasing people who have no place to go or access to health care also could be problematic.

Joshua Dratel, a New York criminal defense lawyer, is a member of the CJA panel, and suspects that courts will grant more bail motions in light of COVID-19.

“If it’s a homicide case, I don’t know what the court’s position will be, but if it’s a non-violent case, I don’t know if there will be a position of resistance,” says Dratel, a past president of the New York State Association of Criminal Defense Lawyers, who also serves as the National Association of Criminal Defense Lawyers’ ABA delegate.

Defendants with privately retained counsel are seeking help too, Dratel says.

“I agree that it’s a difficult time economically, and lawyers, like everyone else, have to figure out whether their client will be in a position to pay now, or six weeks from now,” he says. “This is obviously causing anxiety for a client who sees their health as a priority, and if they have the money to pay, they’ll pay.”