Defense attorneys in San Diego are pushing to have their clients and other federal detainees released from custody, saying they’re at risk of contracting COVID-19 and that the local U.S. Attorney’s Office has resisted requests to release inmates, an assertion its head prosecutor calls misleading and dismissive of its efforts to address the virus.
Kathryn Nester, executive director of Federal Defenders of San Diego, wrote in a letter sent to Sen. Kamala Harris this week that the majority of her office’s clients are nonviolent offenders, such as those charged with offenses related to their immigration status.
Though she credited prosecutors with reducing the number of prosecutions and offering “favorable resolutions in many cases,” Nester says local prosecutors have also pushed back on reducing or posting bond in many cases.
She wrote that the local U.S. Attorney’s Office “is not recognizing a ticking time bomb” and “has continued to ignore the risk of COVID-19 when making crucial prosecutorial decisions — most notable on whether to agree to pretrial release for detained people.”
Nester wrote that some prosecutors have suggested that inmates might be safer in custody.
She warned that a COVID-19 outbreak in the jails would only exacerbate the ongoing public health crisis, requiring that inmates be transported to already overwhelmed community hospitals, as well as to regular court appearances, increasing health risks for jail and court staff.
To curtail those risks, Nester recommends that the U.S. Attorney’s Office stop the pretrial detention of any new, nonviolent arrestees, agree to release current pretrial detainees on their own recognizance, and reconsider charging, sentencing and dismissal decisions in light of the public health risks.
U.S. Attorney Robert Brewer, who heads the San Diego U.S. Attorney’s Office, said Nester’s assertion that prosecutors are ignoring public health risks “is deeply disturbing.”
Brewer said his office has been cooperative with federal defense attorneys in identifying cases where a sentence of time served is appropriate and has moved for expedited sentencing hearings in those instances.
The U.S. Attorney’s Office estimates that more than 100 federal detainees are slated to receive such sentences and be released from custody, yet “there is no mention of our joint undertaking with Federal Defenders in Ms. Nester’s letter,” he said.
In other cases, such as those for people accused of drug smuggling, the U.S. Attorney’s Office said those prosecutions are continuing, “as they are essential to protect the community, but we have elected to issue Notices to Appear in federal court to many of those individuals rather than taking them into custody.”
Brewer also said judges are in control of custody and bail decisions, such as whether to detain defendants pending trial, and that it was “grossly misleading” to suggest prosecutors’ bail recommendations dictate the detention status of defendants.
The Federal Defenders allege that not only does the continued custody status of the defendants endanger their public health, the alleged refusal of prosecutors to consider the health risks “threatens due process by having an enormously coercive effect on those deciding whether to plead guilty.”
The defense attorneys say many clients are forced to “choose between fighting their cases and risking exposure to COVID-19 in jail or quickly pleading guilty with the hope of immediate release.”
Under these circumstances, “understandably, many will plead guilty to avoid infection,” the letter states.
Harris’ office could not immediately be reached for comment.
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