Santa Rita Jail still housing hundreds of federal detainees despite outbreak

As district attorneys around the Bay Area are breaking character and releasing hundreds of pretrial detainees to prevent the spread of COVID-19 in jails, the local wing of the U.S. Department of Justice has taken a strikingly different stance.

Amid the global pandemic — and as cases of the coronavirus mount across California and the United States — the U.S. Attorney’s Office for the Northern District of California has refused to release almost any of the more than 400 federal inmates held in the Santa Rita Jail, most of whom have been charged with crimes but not yet convicted. In 30 cases where defense attorneys have filed release motions, federal prosecutors opposed all but one, according to the office’s own court filings.

It’s a position that has drawn the ire of not just defense attorneys and advocates for de-incarceration, but also federal judges, who in recent days have voiced concern over the lack of COVID-19 testing in Santa Rita, suggested it is “impossible” to meet social distancing guidelines inside the jail, and chided an assistant U.S. Attorney for dancing around the question of whether inmates would be safer if they were freed.

Meanwhile, a total of 31 Santa Rita inmates have tested positive, including three who are no longer in custody, the Alameda County Sheriff’s Office said Friday.

In recent weeks, district attorneys in San Francisco,

Santa Clara, Alameda and Contra Costa counties have agreed to free hundreds of people from county jails to prevent the spread of the virus. Arrests that result in jail bookings have dropped to record lows in those counties, and the California Judicial Council recently set bail at $0 for a multitude of nonviolent crimes, a move intended to lower jail population numbers across the state.

In a phone interview this week, Northern California U.S. Attorney David L. Anderson — in his second year in the position, after being nominated by President Donald Trump in August 2018 — confirmed that his office hasn’t agreed to release anyone. He argued that the decisions have been made in the interest of protecting the public.

“The federal inmate population at Santa Rita is very different from the state population at Santa Rita,” Anderson said. “The federal inmates at Santa Rita are presumed innocent, but have already been found to be dangerous in virtually all cases.”

Federal prosecutors pointed out that unlike in state court, which follows a pre-made bail schedule, federal defendants are judged on a case-by-case basis, and detained only when a judge deems them a flight risk, a danger to the community, or in violation of their pretrial release conditions. Even so, over the past month there have been more than a dozen cases where a federal judge revisited such a decision and freed a person who had been previously ordered detained, over the objections of federal prosecutors.

“What the U.S. attorney is basically saying is, because we think that these folks are dangerous, we think it is OK to subject them to pretty pronounced and unprecedented risks by keeping them locked up in a place where they can’t observe social distancing,” ACLU attorney Shilpi Agarwal said. “Even if someone has been charged with something that someone considers dangerous, that is not a death sentence.”

So far, federal prosecutors have opposed 29 of 30 defense motions to release someone over COVID-19 concerns.

“To me, that’s just wrong. It shows a level of myopic thinking that does not take into account the seriousness of the risk that a disease like this poses, not just to the individual but to everybody else,” said attorney Jeffrey Bornstein, who is representing several Santa

“What the U.S. attorney is basically saying is, because we think that these folks are dangerous, we think it is OK to subject them to pretty pronounced and unprecedented risks by keeping them locked up in a place where they can’t observe social distancing.” — Shilpi Agarwal, ACLU attorney