Feds, judges wrestle with releasing inmates during virus outbreak
Detroit — The region’s top federal law enforcement officer has deep concerns about how federal judges are releasing criminals, including a drug dealer, a robber and other defendants during the coronavirus outbreak.
U.S. Attorney Matthew Schneider aired his concerns in a Thursday letter to the chief federal judge in Detroit warning against a mass release of defendants in the country's most dangerous big city at a time when Detroit has one of the highest coronavirus infection rates in the country. He also criticized the release of inmates without giving prosecutors a chance to object in writing.
The letter comes as state and local prisons and jails weigh releasing vulnerable, non-violent inmates and after Gov. Gretchen Whitmer ordered a series of changes aimed at reducing the spread of coronavirus within prisons. Those changes include suspending inmate transfers and allowing local jails more freedom to release vulnerable inmates.
The U.S. Attorney's Office also raises questions about whether the outbreak and the governor's stay-at-home restrictions in Michigan are overwhelming the court's ability to monitor defendants free on bond, track their movements or ensure compliance with required drug and mental health treatments.
"I would also strongly urge the court to pause and consider the risk that a mass release of criminal defendants would pose to public safety right now," Schneider wrote in a letter obtained by The Detroit News. "Judicial and law enforcement resources are already under strain, and our district suffers from more violent crime than almost any other district in the nation."
The day Schneider sent the letter, federal judges in the eastern district of Michigan met and crafted a rule requiring, among other things, judicial review of requests seeking to overturn detention orders or delay reporting to prison. Judges also required lawyers to notify pretrial services officers, ordered government prosecutors to respond within three days and notify victims.
"Our judges are not releasing anyone without assessing their risk to the community and anyone who is being released is being supervised by our staff," Chief U.S. District Judge Denise Page Hood said in a statement to The Detroit News on Wednesday.
Several high-profile federal defendants have either requested bond or been freed in recent days after citing dangers posed by the coronavirus in state jails and federal prisons with close quarters and high turnover.
That includes Detroit rapper Dion Hayes, aka 42 Dugg, who was released last month, and there are several pending requests, including: Detroiter Darrick Bell, 51, who led federal agents on a nearly three-year manhunt after being accused of running a sex-trafficking ring at the Victory Inn motel; accused pill mill mastermind Dr. Rajendra Bothra, 78; and Dr. Frank Patino, 65, an alligator-wrestling surgeon and accused architect of a $112 million fraud whose lawyer says he is at risk of contracting coronavirus.
So far, at least three federal defendants have been released because of the pandemic.
Defense lawyers and civil liberties advocates, meanwhile, are pushing prison officials to increase the use of compassionate release for inmates 65 and older and the ill and infirm, arguing they are susceptible to the virus behind bars.
State officials urged local sheriff's departments and other law enforcement officials Wednesday to continue their efforts to keep jail populations down through arrest alternatives, early jail release and social distancing to help lower risk of COVID-19 infection as Michigan prepares for a predicted surge of the virus next week.
In Wayne County, officials last month released 384 inmates as part of efforts to reduce the jail population as COVID-19 began to take hold in Michigan. It dropped from 1,381 March 10 to 1,139 two weeks later. On Wednesday, the current population was 997, said Pageant Atterberry, spokeswoman for Wayne County Sheriff Benny Napoleon.
"We are releasing non-violent inmates, which give more room for social distancing (of inmates)," Atterberry said.
Those inmates released from the jail were being held on pretrial or work-release.
Officials said the current jail population is the lowest since 2009.
An alleged rapist with “serious health conditions,” whose case involves one of the thousands of untested rape kits found in a Detroit police facility in 2009, is expected to be released from the Wayne County Jail amid the coronavirus pandemic.
The Wayne County inmate, whose name and age were not released by authorities because of his ongoing medical issues, is incarcerated as he awaits trial on first-degree sexual assault charges, Assistant Wayne County Prosecutor Maria Miller said.
Details about the allegations against the man, including the year the alleged crime occurred and the age of his alleged victim, were also withheld because of laws prohibiting officials from identifying people with medical issues.
“The defendant is an older man and has serious health conditions that put him in a category of release for medical reasons … his condition has been well documented and evaluated by medical professionals at the jail,” Miller said in an email. “Because of his condition, Prosecutor (Kym) Worthy has recommended his release.
“Due to his serious condition, he is not considered a danger to society. When he is released, it will be with a tether.”
It was not known when the man is expected to be released.
Releases from the jail must be signed off by Worthy, Napoleon and Wayne Circuit Chief Judge Timothy Kenny.
Oakland County Undersheriff Mike McCabe said in the past month, the county's jail has released 60 inmates with health problems and bonds of $1,000 or less for misdemeanor offenses.
McCabe said although jail workers and officials are working hard to help stem the spread of the virus, "it's impossible" to maintain safe distancing of six feet in cells with more than one inmate.
Macomb County's jail population has dropped "on a consistent basis with the spread of COVID-19," said Renee Yax, a spokeswoman for the sheriff's office.
"Our jail has a capacity of 1,238 inmates and we are currently housing 517 inmates as of (Thursday)," she said. "Any early releases would be determined by a judge and not the Macomb County Jail. Our facility does have protocols in place for these types of incidents and we are following them. We are limiting movement within the jail and working on a day-to-day basis to keep our facility safe in an ever-changing world."
Defendants awaiting trial in federal court in Metro Detroit are more likely than not to be released on bond. Locally, 41.5% of non-immigration defendants awaiting trial are detained, compared to a national average of 61%, according to federal court statistics cited by Schneider.
In federal court, at least 40 defendants have requested release during the outbreak and at least six prison inmates serving sentences have asked to be released. Several others awaiting sentencing are trying to delay reporting to prison, said Gina Balaya, spokeswoman for the U.S. Attorney's Office.
Three others have been granted release after citing coronavirus concerns.
That includes Detroit heroin dealer Keith Kennedy, 48.
He was accused in October 2018 of helping run a Detroit drug den, appeared in court and was released on bond. While on bond, Kennedy tested positive for opiates, fentanyl, heroin, or cocaine 10 times and failed to undergo treatment, Assistant U.S. Attorney Jihan Williams wrote in a court filing.
Kennedy pleaded guilty in May 2019 under terms of a deal that potentially would send him to prison for at least five years. He was supposed to be sentenced last fall but had disappeared.
The U.S. Marshals Service hunted Kennedy for at least nine months before catching him March 10.
Despite his flight from justice and history of bond violations, U.S. District Judge Judith Levy held a March 26 hearing to consider freeing Kennedy until his sentencing in July.
The hearing was held via telephone due to federal, state and court stay-at-home orders.
Kennedy, testifying from the Saginaw County jail, coughed into the phone repeatedly and sounded congested while testifying that he had flu-like symptoms, which leave him susceptible to coronavirus, according to the judge.
Kennedy said jail staff was not treating his underlying conditions, including high blood pressure and a thyroid issue, and "testified that the detainees had no access to hand sanitizer and were instead provided with a small bar of soap once a week," the judge wrote.
She released Kennedy the next day and ordered a 14-day self-quarantine, citing the "exponential spread of the disease" within state facilities and the need for Kennedy to help his lawyer prepare for sentencing.
"Such a failure to act could have devastating consequences for (Kennedy) and would create serious medical and security challenges to the existing prison population and the wider community," Levy wrote.
Federal prosecutors on Monday asked the judge to reconsider and accused the judge of failing to give them a chance to protest Kennedy's release in writing.
"Kennedy’s inability to refrain from using drugs and his history of distributing drugs threatens the safety of himself and members of the community," Williams wrote.
The judge Wednesday refused to reconsider, saying she was troubled that the government's arguments ignored, among other things, "the exponential nature of COVID-19’s growth..."
She also Wednesday refused to reconsider jailing convicted robber Roosevelt Knight, who was on probation when he was stopped by Detroit Police in a stolen car and charged with new crimes. Knight's lawyer cited danger posed by the coronavirus while arguing against detention.
The bond fights came more than one week after Hayes, the up-and-coming Detroit rapper known as 42 Dugg, won his release from custody in a federal gun case.
Jailing the rapper amid the coronavirus outbreak was "unconscionable," his lawyer argued.
Hayes, 25, was arrested and transferred last month to a Georgia federal court, where he is awaiting trial on a charge of being a felon in possession of a firearm. Prosecutors fought to keep him jailed pending trial, calling him dangerous and a flight risk.
One of Detroit's most notorious fugitives wants bond, too.
Bell headed a sex-trafficking ring that drugged, tortured and forced women to have sex with customers at the Victory Inn motel, according to prosecutors. His street name was "Ghost."
Federal agents raided the Detroit motel in January 2017 and rescued 14 women but could not find Bell. He altered his appearance while leading federal agents on a nearly three-year manhunt that ended in July when investigators captured him in a Monroe motel.
On March 24, Bell's lawyer James Amberg filed a request for bond that cited the COVID-19 virus.
"There is a clear danger for Mr. Bell to be incarcerated, as not only does the particular close nature of the inmates at the jail place him in greater risk for contracting the virus but it is speculated that the treatment for any potential illness may not be present, as can be seen in Italy and parts of the United States," the lawyer wrote.
The request is pending.
The oldest federal prison inmate in Michigan also wants bond.
Bothra has lost every attempt at bond since being arrested two years ago and accused of heading a nearly $500 million health care scheme that fueled the nation's opioid epidemic and left a trail of dead patients.
Last summer, he offered to turn his Bloomfield Township mansion into a high-tech prison with infrared cameras, motion detectors and retired FBI agents. A judge said no.
Then, the virus hit.
Bothra has renewed his bid for bond while awaiting an August trial, citing health problems and travel restrictions imposed during the pandemic that would complicate any attempt to flee to India, where the doctor has money and relatives.
"Requiring Dr. Bothra to remain incarcerated in what can only be described as a petri dish for COVID-19, waiting for the pandemic to reach him, without the ability to shelter-in-place, is the epitome of cruel and unusual punishment imposed on someone who has not been convicted of anything," Bothra's lawyers, Alan Rogalski and David Griem, wrote in a court filing.
They cited intermittent running water in the prison and a lack of soap as other reasons why Bothra should be released.
"With no soap and water, there is certainly no need for the government to resurrect Dr. Kevorkian," they wrote, referring to the late assisted suicide advocate from Metro Detroit.
Before the virus pandemic, Patino was a muscle-bound M.D., wrestling alligators and flexing in photos posted on social media.
That ended two years ago when Patino was arrested, jailed and accused of orchestrating a $112 million health care fraud. Prosecutors portrayed him as a lying bully who hid millions of dollars overseas, threatened to "break the legs" of one associate and hurt another — a bare-knuckled brawler.
Patino is a high risk for contracting coronavirus due to his age, stage 3 chronic kidney disease and hypertension, his lawyer David Nacht wrote in a court filing Tuesday. He is seeking short-term, temporary release during the pandemic.
"Pretrial detention shouldn’t be a death sentence," Nacht wrote.
The Michigan Center for Youth Justice, a nonprofit that advocates for young people in the criminal justice system, applauded Whitmer's executive order. The group sent a letter to the governor on March 19 asking her to help stop the state's incarcerated youths from coming in contact with the virus.
"These adjustments will save lives in the short term, and give more youth a better shot at a second chance,” said the group's director Mary King. “We are grateful to Gov. Whitmer for taking the necessary steps to protect young people."