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Law360 (March 23, 2020, 5:56 PM EDT ) As the number of those infected with the novel coronavirus increases in New York, defense attorneys want federal judges to help thin the jail population before the facilities become major drivers of the outbreak, even as President Donald Trump said officials are considering calls to release prisoners.
The effort to get the judiciary involved is part of a campaign by New York's defense bar to protect the health of clients in detention and prison. While the work has centered on getting prosecutors to decrease new arrests and not press for pretrial detention, defense attorneys are seeking to enlist the help of courts too.
Those efforts continued on Monday after Trump said at a press conference that his administration was considering the release of "totally nonviolent" offenders.
"We are actually looking at that, yes," he said at the daily White House briefing on the pandemic. Trump has previously used his commutation power to release individuals whose cases were championed by celebrities or his associates.
Meanwhile, attorneys in New York have pressed for a multi-agency effort including both the judiciary and the U.S. attorney's offices to quickly identify defendants in detention who are at the highest risk.
The idea was floated in an emergency call late last week convened by U.S. District Judge Valerie Caproni. The judge heads a criminal justice committee in New York's Southern District that includes federal law enforcement agencies as well as defense attorneys.
The call included prison officials, who reported that an inmate at Brooklyn's Metropolitan Detention Center had been tested. The test subsequently came back positive, making for the first confirmed case in the country's federal prison system.
According to sources familiar with what was said on the call, other judges made impassioned remarks about the need to mitigate the potential disaster posed by the spread of the virus in facilities. Other judges did not support the idea at the time.
The New York Council of Defense Lawyers sent a letter to U.S. Attorney Geoffrey Berman on Sunday, calling on his office to work with court representatives, public health experts and the Federal Defenders of New York to identify at-risk inmates, such as older inmates and those with underlying health conditions.
"Once identified, we ask that you work collaboratively with all stakeholders to determine who among this vulnerable population can and should be released," the group wrote. The attorneys also reiterated the call for prosecutors to limit new arrests and detentions.
The NYCDL sent another letter to Chief Judge Colleen McMahon on Sunday, calling on her to make changes to arraignment policy to prevent the possibility of defendants spending unnecessary time in detention before they are arraigned. It also called on the court to institute video arraignments.
David Patton, head of the Federal Defenders of New York, said during a press conference on Sunday that an effort is also underway to formulate guidelines for how judges across New York's Southern and Eastern Districts should consider bail requests amid the deepening crisis.
While judges hold the power to grant or deny bail applications, the situation is more complicated with defendants already in prison, absent intervention from the president or the U.S. Department of Justice.
Under existing protocol, in order for defendants to apply to courts for compassionate release, the law says they must first apply to the Bureau of Prisons then wait 30 days.
A judge in Connecticut denied an application from a man who pled guilty to a white collar charge who was concerned for his health last week, saying he had not completed the waiting period or shown "extraordinary or compelling" circumstances.
The Federal Defenders of New York have called on U.S. Attorney General William Barr to amend the Bureau of Prisons' policy to make being at higher risk of death from COVID-19 a compelling circumstance.
In guidance to the U.S. attorney's offices last week, Barr said the goal is to continue to "operate effectively," but urged the offices to work closely with the chief judges in their district to protect public health.
Representatives for the U.S. attorney's office in Manhattan, the MDC, the DOJ and the District Executive's Office for the Southern District of New York did not respond to inquiries on Monday. A spokesman for the U.S. attorney's office in Brooklyn declined to comment.
--Editing by Adam LoBelia.
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