Michael Broglie has been in Allegheny County Jail for nine months on a federal drug-conspiracy charge. His sister, Denise Puglisi, said he agreed to plead guilty for a sentence between eight and 14 months – which means in theory, he could be set free today.
But the court hearing where he could get permission to leave isn’t scheduled until July.
About 250 of the county jail’s roughly 1,680 inmates are being held by federal authorities as they are tried in federal court. But while local officials have acted to release hundreds of prisoners due to fears of the coronavirus, there has been less movement at the federal level. And with the county already reporting four cases of the disease at the jail, Puglisi worries that her brother is “going to get it and die.”
“I don’t sleep,” she said of the anxiety Broglie’s captivity has caused her. “He shouldn’t be [in jail]. He has uncontrollable high blood pressure, and he shouldn’t be there.”
Jails and prisons can be hotbeds for coronavirus. The infection rate at New York City’s Rikers Island Jail, for example, is over seven times that of the city itself, while the number of cases in Chicago’s Cook County jail has soared to more than 30 times the rate outside its walls.
Last week, three people detained at the Allegheny County Jail alleged in a federal class-action lawsuit that officials have not taken adequate measures to combat similar outbreaks at the local facility.
Puglisi said if her brother were let out, there would be little risk. She said Broglie could stay with her on house arrest, and that she would make sure he doesn’t miss his next hearing.
“I offered to pay for the monitor,” Puglisi said. “He has a place to go. He’s not going nowhere.”
Broglie’s attorney asked a judge last week to release his client to home confinement or to reschedule his hearing for next month. The government has yet to file a response, but so far it has not shown much interest in releasing anyone early.
Local court-appointed defense attorneys have requested that more than 40 of their clients be released early, but federal prosecutors have opposed the relief in all but one case, according to western Pennsylvania’s Federal Public Defender’s Office. Among the release motions filed by appointed lawyers, judges had denied 24 and granted none as of Monday afternoon, though the defender’s office said the court has approved a few requests to free people from halfway-house programs.
About 160 of the federal defenders’ clients are detained at a handful of facilities scattered across western Pennsylvania and eastern Ohio. Courts also assign private attorneys to represent additional people who cannot afford counsel. The U.S. Marshals Service declined to disclose the total number of defendants in its custody, citing security reasons.
The Federal Public Defender for Western Pennsylvania, Lisa Freeland, said court-appointed attorneys have sought release for clients with preexisting health conditions that make them vulnerable to the virus. She said many are awaiting trial, or they are eligible for early release under the First Step Act or for home confinement under the CARES Act, the recently enacted coronavirus-relief bill.
“If you look at some of the responses that have been filed, and some of the orders that have been entered,” Freeland said of prosecutors and judges’ reactions to requests for release, “the narrative is that COVID-19 is a problem, but it’s not a problem that we’re going to address for this population.”
‘Resistant to releasing anybody’
That outlook contrasts sharply from the tone at local courts, where prosecutors have often not opposed – and sometimes even assisted – efforts to expedite hundreds of releases. Local and state authorities have released roughly 950 people from the Allegheny County Jail due to fears over coronavirus, according to a county spokesperson.
But ACLU of Pennsylvania legal director Vic Walczak, who represents the inmates who sued Allegheny County Jail last week, said he thinks the feds’ harder-line approach “is driven from the top, from the President to the Justice Department on down. … They are just more resistant to releasing anybody from detention.”
The federal Bureau of Prisons has released more than 1,000 of the 145,000 inmates in its custody since late March, and U.S. Attorney General William Barr expanded opportunities for home confinement when he declared an emergency earlier this month.
Within the U.S. Bureau of Prisons, close to 400 inmates and more than 200 staff across 40 facilities had tested positive for COVID-19 as of Monday. Thirteen inmates had died, with prisons in Butner, N.C., Oakdale, La., and Elkton, Ohio, experiencing especially dramatic outbreaks. Pennsylvania Department of Corrections officials announced Monday that a Montgomery County inmate died of complications from COVID-19.
Barr directed the bureau to prioritize "the most vulnerable inmates at the most affected facilities" for release, though he has loosened release criteria in recent days. At the same time, Department of Justice officials reportedly have sought to stop inmates from appealing to judges without first waiting at least 30 days or undergoing review within the federal prison system.
President Trump, meanwhile, condemned state and local officials for potentially endangering the public by freeing people convicted of crimes.
"We don't like it. The people don't like it. And we're looking in to see if I have the right to stop it in some cases," Trump said.
In western Pennsylvania, U.S. Attorney Scott Brady said in a statement that his office weighs inmates’ health needs when responding to requests for release.
“As motions for release are filed by defendants, we will review each one on its individual merits and respond appropriately, always bearing in mind that the protection of the citizens of our District is paramount,” Brady wrote. “At the same time, however, a defendant’s risk from COVID-19 is ‘a significant factor’ in our analysis.”
Brady noted that federal law precludes freeing people who pose a danger to public safety or are likely to flee. Former federal prosecutor Bruce Antkowiak says these risks are key concerns.
“Imagine, if you will, the reaction if an individual who was released pretrial committed another very serious offense,” said Antkowiak, who is now a criminology professor at St. Vincent College. “That will cause the kind of public outcry that is really going to shake the system down to its very foundations.”
Courts deny heightened risk of infection behind bars
In court opinions, local U.S. District judges have repeatedly suggested that people behind bars face the same risk from coronavirus as anyone else. For example, Judge Nora Barry Fischer quoted fellow judge Arthur Schwab when she wrote in a March 25 order denying a request for release that “while the court does recognize the potential for exposure [to coronavirus], that potential unfortunately exists anywhere in the community.”
Assistant U.S. Attorney Ross Lenhardt made a similar point when he argued that the pandemic did not warrant the compassionate release of a terminally ill inmate.
“As this is being typed,” the prosecutor wrote in a memo, “AUSA Lenhardt (and likely many Americans) is in the nearly exact same situation … A neighbor two doors away is quarantined with his family as a result of testing positive, and the neighbor next door is quarantined with her family and being watched due to out-of-country contact with a COVID-19 positive person.”
In fact, data suggests that infection rates behind bars, where incarcerated people often cannot keep safe distances from one another, far outstrip those in the surrounding community.
But federal judges have expressed confidence in local officials’ response to the pandemic. Echoing her fellow judges, senior U.S. District Judge Joy Flowers Conti wrote in an April 1 filing that authorities “have taken the necessary steps and precautions to help stop the spread of the COVID-19 virus amongst the population of Allegheny County, including those individuals detained in the [county jail].”
And at a hearing last week, federal Magistrate Judge Lisa Lenihan suggested that a defendant might receive superior medical care at the county facility.
In blocking the release of Donnell Warren, who has been detained for nearly three years on drug and firearms-related offenses, Lenihan said, “It is possible that Mr. Warren has a better opportunity to get health care at the [jail] than he would in the community. Mr Warren does not have a work history, so I’m assuming he doesn’t have medical insurance.”
Federal prosecutors reportedly have advanced similar arguments in jurisdictions across the country, but Antkowiak has his doubts about the rationale.
“As much as the prison system makes an effort to try to keep people safe," he said, "I don’t think anyone’s ever held up a prison system as being the societal model of good health care.”
In his statement, Brady said his office is keeping tabs on how jails and prisons are managing the threat of COVID-19.
“Since the beginning of the crisis, we have been in regular contact with the United States Marshals Service and the institutions where federal inmates are incarcerated in order to monitor conditions at each facility, including its intake procedures, medical resources available at each facility, and the precautions being taken to minimize the risk of spread of COVID-19,” Brady wrote.
Freeland warned, however, that prisoners who contract the virus can end up in public hospitals, or transmit it to staff who live in the wider community.
“And reducing the prison and jail populations now, because of that reality, will save the lives, not only of our clients who are incarcerated [but also of] prison and jail staff and people in the broader community,” the public defender said.
In that way, she believes the best way to protect public safety is to set some prisoners free.