FEDERAL DETENTION AND 'WILD FACTS' DURING THE COVID-19 PANDEMIC.

• Author: Fuentes, Gabriel A.

INTRODUCTION I. VIRUSES AND THE COVID-19 PANDEMIC II. THE BAIL REFORM ACT, THE CONSTITUTION, AND THE COMPLEXITY OF COVID-19 III. RISING TO THE CHALLENGE OF COMPLEXITY IN FEDERAL COVID-19 BAIL DECISIONS A. The Basic Arguments for Release Based on COVID-19 B. The Government's Arguments for Detention Notwithstanding CO VID-19 C. Where the "Wild Facts" Are D. Applying "Wild Facts" To Federal Detention in the Pandemic CONCLUSION INTRODUCTION

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. (1) But as the novel coronavirus known as SARS-CoV-2 raced through the United States 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. Certainly, they argued, the situation had changed: detaining new defendants in jail environments could put both defendants and jail staff at greater risk of infection, and potentially trigger a mass outbreak that could affect not only individual jails but the communities and health-care systems around them. In the first weeks of the pandemic, early decisions indicate that judges are responding to the challenge in different ways. This Article offers a framework for considering defendants' arguments for release based on the COVID-19 pandemic. It suggests that the shifting landscape of facts and scientific knowledge about this disease, as well as governmental responses to it, challenge practitioners and courts to grapple with an additional layer of complexity in applying the Bail Reform Act and the Constitution to federal detention decisions. It is now crucial for courts to push past the parties' representations and into the facts and science behind them. The challenge is to try to rely on our experience to search for the line between the known and unknown about the risk this new virus poses in jail environments, by venturing past the open grasslands in a hunt for the less visible "wild facts" lurking in the forest. The lore of "wild facts," an abstract concept first articulated in the early twentieth century by philosopher William James, tells us that "wild facts" are "subtle, unexpected particulars" that lie not in law but in human experience, and that militate against the mechanical and impersonal application of a society's laws. (2) Now that COVID-19 has injected a new level of complexity into federal detention decisions, this Article uses the "wild facts" concept as an inspiration for meeting the new challenge of complexity in federal detention. Using Richard Posner's modern take on "realism" versus "formalism" as a guide to defining today's "wild facts," this Article proposes an intellectually inquisitive approach, which bases decisions on science and facts, including facts that may require effort to unearth, as they may be, if not transformative, at least significant enough to affect decisions materially. (3) Tested against judges' experience, this brand of "wild facts" might lead to decisions that withstand the daily onslaught of new information about the virus, because these facts are tethered to the reality, to the extent it can be known, of COVID-19's impact on prisoners, jail populations, and surrounding communities.

1. VIRUSES AND THE COVID-19 PANDEMIC

   Before discussing how judges may respond to bail arguments based on the novel coronavirus, we should have a basic understanding of how viruses, and the virus that causes COVID-19 in particular, work. Viruses are all around us. They are part of an unseen world that teems with microbes so tiny that researchers barely knew about them before the first half of the 20th Century. (4)

   [I]magine that you have powerful glasses allowing you to perceive any and all microbes. If you were to put on such magical bug-vision specs, you would instantly see a whole new, and very active, world. The floor would seethe, the walls would throb, and everything would swarm with formerly invisible life. Tiny bugs would blanket every surface-your coffee cup, the pages of the book on your lap, your actual lap. The larger bacteria would themselves teem with still smaller bugs. This alien army is everywhere, and some of its most powerful soldiers are its smallest. These smallest of bugs have integrated themselves, quite literally, into every stitch of the fabric of earthly life.... They are viruses. (5) These tiny viruses attach themselves to cells, including those of humans. They invade those cells and "hijack[] the cellular processes to produce virally encoded protein that will replicate the virus's genetic material." (6) To complete their life cycle, viruses spread to infect the cells of new hosts. (7) As viruses move from host to host, their genetic makeup mutates with remarkable frequency, thus increasing the odds of evading their hosts' immune systems and anti-viral drugs. (8) Meanwhile, their genetic makeup may reassort or recombine, creating entirely new viruses and thus "a rapid and radical way" for viruses "to create novelty." (9) The word "novel," when used to describe coronaviruses and humans' vulnerability to them, means that the virus is new to humans, whose immune systems do not immediately recognize it as an invader. (10)

   SARS-CoV-2, the novel coronavirus that causes COVID-19, is thought to spread between people primarily "through respiratory droplets produced when an infected person coughs, sneezes, or talks." (11) These droplets can then enter nearby people through contact with their mouths or nose; if the droplets are not inhaled, they can land on nearby surfaces. (12) When new persons touch those surfaces and then touch their own mouths, noses, or eyes, the virus continues to spread. (13) SARS-CoV-2 has been found to be detectable in aerosols for up to three hours, on copper for up to four hours, on cardboard for up to 24 hours, and on plastic and stainless steel surfaces for up to two to three days. (14)

   The capacity of a virus to spread from one person to another is measured by its "basic reproductive number," or [R.sub.0], which is calculated by the number of new victims per prior victim. (15) The [R.sub.0] for SARS-CoV-2 has been described as between 1.5 and 3.5, meaning that each infected person can be expected to infect roughly two or three people. (16) If the [R.sub.0] for an outbreak drops to below one, the virus will be unable to sustain itself and will die out. (17) The virus's ability to induce symptoms (like coughing or sneezing) in its hosts--so that it may spread to new hosts--is one way it persists. (18)

   Not all viruses are deadly, but SARS-CoV-2 is. As of early May 2020, COVID-19 had killed more than 80,000 persons in the United States as infections exceeded 1.3 million. (19) The World Health Organization has labeled the global COVID-19 outbreak a "pandemic," a word used by health experts to describe a new infectious agent that has spread to all continents except Antarctica. (20) The SARS-CoV-2 virus can kill by attacking the lungs, triggering an immune-system response that can give rise to a condition known as Acute Respiratory Distress Syndrome, in which cells in the lungs leak fluid, become inflamed, and smother the lungs' ability to pass vital oxygen into the bloodstream. (21) Researchers continue to learn more about the virus and its effects, which reportedly also can include potentially fatal strokes. (22) As the state of our collective knowledge about SARS-CoV-2 continues to evolve, even at this writing, the unprecedented nature of this pandemic has affected virtually all facets of American life, including the legal system.

2. THE BAIL REFORM ACT, THE CONSTITUTION, AND THE COMPLEXITY OF COVID-19

   The Bail Reform Act of 1984 (23) governs the release of pre-trial detainees on bail. Under the Act, a judicial officer may order the release or detention of a defendant pending trial, depending on whether the government, in moving for detention at a detention hearing, has established either (1) by a preponderance of the evidence, that no condition or set of conditions of release will reasonably assure the appearance of the defendant in court as required; or (2) by clear and convincing evidence, that no condition or set of conditions of release will reasonably assure the safety of any other person and the community. (24) In making that determination, courts are to consider a set of statutory factors that include the nature of the offense, the defendant's history, the weight of the evidence, and the potential impact release might have on public safety in light of the "available information." (25) The Act also erects a rebuttable presumption of detention under certain circumstances, most commonly when the judge finds probable cause to believe the defendant committed an offense with a maximum term of incarceration of 10 years or more under the Controlled Substances Act. (26) The presumptions of dangerousness and flight risk are rebutted when defendants meet a burden of production by coming forward with at least some evidence that they will not flee or endanger the community if released. (27)

   The Bail Reform Act generally expresses a "preference for release," in that Section 3142(e) requires the Court to consider the possibility of less restrictive alternatives to detention. (28) In addition, Section 3142(b) provides that judges "shall" order release "unless the judicial officer determines that such release will not reasonably...