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OPEN DURING COVID-19 PANDEMIC

Peter J. Schaffer remains committed to providing necessary advocacy for his clients.  During this unprecedented COVID-19 crisis Mr. Schaffer has conducted motion practice, telephone and video court appearances to have clients released from State and Federal custody, and address their conditions of bail.

On March 11, 2020, the World Health Organization officially classified the new strain of coronavirus which causes COVID-19 as a pandemic. WHO Characterizes COVID-19 as a Pandemic, World Health Organization (Mar. 11, 2020), https://bit.ly/2W8dwpS. “COVID-19 is a serious disease” that makes certain populations of people severely ill and can lead to death. Declaration, Chris Beyrer, MD, MPH, Professor of Epidemiology, Johns Hopkins Bloomberg School of Public Health, ¶ 5 (Mar. 16, 2020) (Attachment A). The current best estimate is that the fatality rate among all demographics “is 5-35 times the fatality associated with influenza infection.” Beyrer Dec. ¶ 5.[1]

COVID-19 has infected more than 700,000 people worldwide, leading to more than 30,000 deaths. Coronavirus COVID-19 Global Cases, Center for Systems Science and Engineering (CSSE) at Johns Hopkins University, https://coronavirus.jhu.edu/map.html (updating regularly) (last accessed Mar. 30, 2020, at 9:03 a.m.). On March 26, 2020, the United States became the global leader in COVID infections. Tom Porter, The US is Well on the Way to Having a Coronavirus Outbreak Worse than China’s or Even Italy’s, Business Insider (Mar. 26, 2020), https://www.businessinsider.com/figures-show-us-soon-coronavirus-worse-china-2020-3. The number of confirmed COVID-19 cases continues to rise exponentially, but reported numbers underrepresent the true scope of the crisis—“experts believe that the United States still isn’t testing enough people to detect the outbreak’s true spread.” Alexis C. Madrigal & Robinson Meyer, How the Coronavirus Became an American Catastrophe, The Atlantic (Mar. 21, 2020) (estimating that the virus had already infected 87,000 Americans as of that date), https://www.theatlantic.com/health/archive/2020/03/how-many-americans-are-sick-lost-february/608521/.

The severity of the coronavirus pandemic is reflected in the actions of local and national leaders, who have taken drastic measures to prevent the spread of the disease. All 50 states and the national government have declared states of emergency. See Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. Kamran Rahman & Alice Miranda Ollstein, How States Are Responding to Coronavirus, in 7 Maps, Politico, (Mar. 24, 2020), https://www.politico.com/news/2020/03/24/coronavirus-state-response-maps-146144. Additionally, more than half of the states and the District of Columbia have imposed severe “lockdown” rules for their citizens. Porter, supra.

Conditions of imprisonment create the ideal environment for the transmission of contagious diseases. Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases, 1047-1055 (Oct. 2007), https://doi.org/10.1086/521910. “Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced.” Centers for Disease Control and Prevention (CDC), Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html. The CDC recognizes the difficulty of preventing the introduction of COVID-19 into prison facilities:

There are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions.  Id.

Crowding, inadequate ventilation, and security issues all contribute to the spread of infectious disease in jails and prisons. Michael Kaste, Prisons and Jails Worry About Becoming Coronavirus ‘Incubators’, NPR (Mar. 13, 2020), https://www.npr.org/2020/03/13/ 815002735/prisons-and-jails-worry-about-becoming-coronavirus-incubators. Hand sanitizer, an effective disinfectant recommended by the CDC to reduce transmission rates, is contraband in jails and prisons because of its alcohol content.  Keri Blakinger & Beth Schwarzapfel, How Can Prisons Contain Coronavirus When Purell is a Contraband?, ABA Journal (Mar. 13, 2020), https://www.abajournal.com/news/article/when-purell-is-contraband-how-can-prisons-contain-coronavirus. Additionally, incarcerated people tend to be in poorer health than the general population. According to a recent Bureau of Justice Statistics study, approximately half of state and federal prisoners and jail inmates have chronic conditions such as cancer, high blood pressure, diabetes, cirrhosis of the liver, heart disease, and asthma. Laura M. Maruschak et al., Medical Problems of State and Federal Prisoners and Jail Inmates, NCJ 248491 (2015), https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf. Medical care of prisoners is limited at the best of times.[2]

Because of these dangers, the public health community is insistent on the critical need to rapidly reduce our prison populations, both for the health of our inmates and the health of the community as a whole:

It is . . . an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible . . . Releasing as many inmates as possible is important to protect the health of inmates, the health of correctional facility staff, the health of health care workers at jails and other detention facilities, and the health of the community as a whole.

Beyrer Declaration, ¶¶ 17, 19. “We need to take the unprecedented step TODAY of providing urgent release to everyone in the jails who is at risk of serious morbidity and mortality from COVID.” Jennifer Gonnerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients from the Coronavirus, The New Yorker (Mar. 20, 2020) (quoting Rachael Bedard, Rikers Island Geriatrician).

Similarly, on March 23, 2020, a bipartisan group of fourteen senators wrote to Attorney General Barr and the Director of the Bureau of Prisons to express “serious concern for the health and wellbeing” of those inmates “most vulnerable to infection.” Letter from Senator Charles Grassley et al. (Mar. 23, 2020) (Attachment B). They noted that “[c]onditions of confinement do not afford individuals the opportunity to take proactive steps to protect themselves, and prisons often create the ideal environment for the transmission of contagious disease.” Id. The senators called on the BOP to use existing tools like the elderly prisoner home confinement program and compassionate release to release vulnerable inmates from prison. Id.

COVID-19 has made inroads in the BOP, reaching at least 15 locations and infecting 19 inmates and 19 staff members as of March 30, 2020. www.bop.gov/coronavirus (providing daily tallies of confirmed infections) (last accessed Mar. 30, 2020, at 9:01 a.m.). And these are just the confirmed infections. As the judge in United States v. Caddo noted, “it is unknowable whether BOP detainees or inmates have Covid-19 until they are tested, and BOP has not conducted many or any such tests because, like the rest of the country, BOP has very few or no actual Covid-19 test packets.” Order at 5, United States v. Caddo, No. 3:18-cr-08341-JJT (D. Ariz. Mar. 23, 2020). [Update as appropriate:] One BOP inmate who fell ill on March 19, 2020, has died from the disease. https://www.nytimes.com/reuters/2020/03/28/us/28reuters-heath-coronavirus-prison-death.html. He was 49 years old.

 

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