FEDERAL DETENTION AND "WILD FACTS" DURING THE COVID-19 PANDEMIC

ABSTRACT

Whether to detain or release a defendant in a federal criminal case can be among the most challenging decisions federal judges face. Detention hearings present courts with a wide variety of factual circumstances surrounding defendants and their personal histories, their charged offenses, the evidence against them, the ways in which their detention or release might bear upon the community's safety, and the likelihood that they will appear in court. At least that much is the black letter law. But as the novel coronavirus known as SARS-CoV-2 raced through the US in the winter and spring of 2020, touching off widespread infections of the disease labeled COVID-19, a new challenge arose with respect to federal arrestees and defendants already in detention. Citing the threat of COVID-19 infection, many defense attorneys began aggressively pushing for release of their clients. Here, Fuentes offers a framework for considering defendants' arguments for release based on the COVID-19 pandemic.