COVID-19, REDUCED BAIL & LIFTING PROBATION DETAINERS FOR MEDICAL REASONS
I’ve written many articles on pre-trial detention and release on bail prior to trial. It is obviously better to fight a case out of custody as opposed to remaining in either county or state prison prior to trial. Bail, as frequent readers of my blog know, is meant to ensure a person’s appearance at trial and not to punish someone for mere allegations. An accused person always maintains a presumption of innocence in both federal or state court and this obviously includes Pennsylvania and New Jersey where our Philadelphia criminal defense law firm is based. In most situations all accused persons are entitled to bail except those facing murder charges where the mandatory minimum in life in prison.
What Factors determine bail?
Release on bail is based on a number of factors including but not limited to the following:
- person’s criminal history,
- out of stat contacts
- contacts with the community,
- employment history,
- prior failures to appear (FTA history)
- and propensity towards violence.
What is a Probation Detainer
If you or a friend is currently on probation or parole, a condition of that status is remaining arrest free, drug free and having no contact with law enforcement. Under these circumstances, even an arrest (direct violation) for a relatively minor offense such as shop lifting, drunk driving, simple possession of drugs can lead to months of incarceration in county jail, especially in situation like the current state of affairs where most court operations in Pennsylvania and New Jersey are suspended. In addition to an arrest, failing a drug screen or missing an appointment with your probation officer could result in a technical violation. Like a direct violation (new arrest), a technical violation could cause you to spend literally months in jail waiting to see a judge.
In addition, a court will consider other compelling reasons such as a person’s medical condition when considering pre-trial or a motion to lift a detainer. In many situations, health risks due to a medical condition such as diabetes, heart disease, a pulmonary condition (including asthma), or a compromised immune system could persuade a court, at either the federal or state level, to release an accused person to either house arrest or even unsecured bail.
The recent COVID-19 outbreak has infected over 132,000 people worldwide and has claimed the lives of over 10,000 persons as of the date of this blog. The World Health Organization (WHO) has classified it as a pandemic and the federal and most state governments have declared states of emergency as well as taking protective measures, such as shutting down all non-essential private businesses to reduce the risk of spread.
In addition, the Center for Disease Control (CDC) has issued guidance which indicates that certain individuals are at a higher risk for contracting COVID-19 and these persons include the following:
- Adults over the age of 60
- Persons with the
following chronic medical conditions:
- Lung disease
- Heart disease
Jail & COVID-19 Spread – Why a Judge may order a release
Confinement in a county, state, or federal facility often creates the ideal environment for the transmission of contagious diseases. Inmates often cycle in and out of the facility from literally all over the country and persons who work within these facilities, including correctional officers and care and service providers, leave and return daily without screening. Incarcerated persons often have poorer health than the general population and even in the best of times medical care is limited, especially in cities with large county jail populations such as Philadelphia, Pennsylvania and Camden, New Jersey. People who are incarcerated often have chronic conditions such as diabetes or HIV which make them more vulnerable to severe forms of COVID-19.
Further, public health experts have stated that incarcerated persons are at a special risk of infection given their living conditions and their inability to participate in proactive measures to keep themselves safe. Outbreaks of the flu regularly occur in jails and such conditions occurred during the 2009 H1N1 epidemic in many state and federal prisons. District attorneys across the country, including Philadelphia’s DA Larry Krasner, have encouraged police not to take individuals charged with low level misdemeanors such as simple drug possession and shop lifting into custody to reduce the county jail population and holding cells within individual police stations.
Motions to Lift Detainers & For Pre-Trial Release for Health Conditions
If you or a loved one is in jail or prison awaiting trial or with a probation detainer, you may want to consider asking that your criminal defense lawyer to file a motion with the court requesting your release due to the COVID-19 outbreak. It is very important that your attorney include details regarding your health issues and the circumstances surrounding your incarceration including but not limited to the number of persons in your facility along with your limited access to personal hygiene items such as soap, tissues, or disinfectant. Under the federal system, a judge may release an individual held in pre-trial confinement pursuant to 18 USC 3142(i), the judge determines that release is necessary for preparation of a person’s defense or for compelling reasons such as a health condition.
Contact Our Criminal Defense Lawyers in PA & NJ
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