Federal prosecutors in Washington, D.C., are regularly opposing the release of inmates during the COVID-19 pandemic, as some trial judges allow criminal defendants to transfer to home confinement during the health crisis.

In filings in the D.C. trial court, federal prosecutors consistently tell judges that inmates have not provided enough evidence to show they suffer from a medical condition, such as asthma, that would make them vulnerable to COVID-19. They also claim the incarcerated haven't shown the conditions tied to their case, apart from the pandemic, have changed to merit their release.

Some trial judges have agreed with the prosecutors and denied the motions for release. But others have found the pandemic outweighs factors that would normally mean a defendant should remain incarcerated.

The rulings come as the virus spreads within D.C.'s correctional facilities, where dozens of inmates have tested positive for coronavirus. Deon Crowell, an inmate in the district's jail, last week became the first individual detained at the facilities to die from the virus. His attorneys sought his release in D.C. Superior Court, pending a trial on a murder charge weeks earlier, but federal prosecutors opposed the move in D.C. Superior Court.

The standards vary for individuals who are detained pending trial, and those who have already been convicted and awaiting sentencing. The government lawyers consistently argue authorities are taking actions to protect inmates and the need to protect the community outweighs defendants's health concerns.

"As described earlier, the defendant's chief argument is that he has asthma and thus, he needs to be released. As part of this argument, he notes that there is now a positive COVID-19 in the D.C. Department of Corrections (DOC)," prosecutors wrote in an April 1 filing, for a criminal defendant awaiting trial. "Respectfully (and sadly), this should come as no surprise to the court or the parties. The idea that DOC would emerge unscathed from a global pandemic is doubtful. The real inquiry is the balance of interests."

The motion for release was denied in that case, as U.S. District Judge Dabney Friedrich found the defendant had other outstanding warrants and "will continue to be detained even if the court grants his motion for release."

In another filing, the prosecutors noted a defendant had only asserted he had asthma through a court filing and had not provided evidence of the medical condition to the court.

"However, not only has Mr. Jones not presented the court with exceptional reasons why his detention would not be appropriate, but the medical reason he relies on, asthma, is wholly unsupported by the record, or any evidence," the April 17 filing reads. "Moreover, the key question, in fact, is whether there is anything about the defendant in particular, rather than the mere existence of COVID-19 as a generality, that uniquely presents this court with such changed circumstances that would warrant reconsideration of detention."

The government attorneys also wrote in multiple filings that, while mindful of the pandemic and the danger it poses, "the government has endeavored—on a case-by-case basis and as a result of the public health crisis currently pending—to permit temporary release … to those who actually need release."

And the prosecutors suggested that claims of medical conditions made by those currently incarcerated should not be taken by the court at face value.

"It should not surprise the court that scores of detained defendants have emerged alleging various underlying health conditions—some of which, when specified, the government has acknowledged on a case-by-case basis—but without more, the government is left to speculate as to the nature of the condition, the acuteness of the condition, and whether the risk justifies the extraordinary acquiescence to release," the government lawyers wrote in one filing, dated April 1.

The U.S. Attorney's Office has, on a couple occasions, said it did not oppose the release of inmates. One case was that of a defendant who had three months left to serve in his sentence and sought a compassionate release from the court, arguing his age made him vulnerable to the virus. U.S. District Judge Ellen Huvelle granted the release.

The legal wrangling is also playing out in the backdrop of a class-action lawsuit filed in the D.C. District Court on behalf of D.C. inmates. U.S. District Judge Colleen Kollar-Kotelly on Sunday issued an opinion rejecting a request to release inmates but did order the Department of Corrections to implement other healthy and sanitary measures to protect those in the facility.

Prosecutors acknowledged that ruling in a memo Tuesday, opposing the release of another criminal defendant over the pandemic.

"The government has every expectation that DOC will comply with the court order, and in the next few days and weeks, DOC's protocols will be implemented consistent with the court's mandate," the filing reads.

Federal judges in Washington, D.C., have differed in granting orders for release. Many have sided with the government, finding there is insufficient evidence to support defendants' claims that they could suffer if they remain incarcerated, or that those claims outweighed the interest in public safety in keeping those individuals detained.

But others have found the pandemic to be the tipping point in granting the motions for release.

U.S. District Judge Randolph Moss found, in the case of a criminal defendant facing gun and drug charges, that he "is now convinced that incarcerating the defendant while the current COVID-19 crisis continues to expand poses a greater risk to community safety than posed by defendant's release to home confinement."

"The risk of the spread of the virus in the jail is palpable, and the risk of overburdening the jail's healthcare resources, and the healthcare resources of the surrounding community is real," the judge wrote in the March 26 order. "On the other hand, if defendant is confined at home and has contact only with his wife, the risk to him (including his heightened risk due to the underlying health condition he disclosed to the court) and to others will be significantly reduced."

U.S. District Judge John Bates on April 6 granted a motion for release for a defendant with bronchitis and who was taking medication that could make him more susceptible to the respiratory virus.

He found the inmate had a strong likelihood of becoming severely ill if he contracted the virus, which would strain the D.C. Jail's medical resources. The judge said, if the virus continues to spread within the facility, "decreasing the number of people in the D.C. Jail and lessening the burden on the jail's limited healthcare resources will be crucial to protecting all inmates and staff at the D.C. Jail as well as people in the surrounding community."

In issuing the ruling, Bates laid out the analysis courts must make in determining whether to grant an emergency motion for release: "Courts have routinely denied emergency motions for release based on the generalized threat of COVID-19 when the underlying offense is serious and there is no unique, heightened risk to the particular defendant. And even where a defendant does face a heightened risk, that is not the end of the analysis. Courts still take into account other factors, including 'the original grounds for the defendant's pretrial detention,' 'the proposed release plan,' and 'COVID-19 risks to others.'"

In one case, where a man sought release from the facility due to his hypertension, prosecutors argued that he remained a danger, noting he was repeatedly arrested while on release in the past.

But U.S. District Judge Amit Mehta found the pandemic and its presence in the correctional facility was an "exceptional reason" to merit release to supervised home confinement.

"The court is concerned about defendant's potential for assaultive behavior, given the pendency of three assault charges, each incurred while on release in this case," the judge wrote. "But that concern is mitigated by the strict conditions of release under which the court intends to place defendant, which are designed to minimize his exposure to others."

Other judges have found defendants in their court have not provided sufficient evidence to show they will be affected individually by the virus, or they can be confined at home without posing a risk to others.

Chief Judge Beryl Howell denied a motion for release from a defendant alleged to have repeatedly sexually assaulted a minor, finding that if he were released, he could be a danger to his alleged victim and other children.

Howell said the dangers caused by the pandemic "clearly serious, and the court acknowledges that risk may be greater in a jail environment where defendants are housed in close proximity to one another."

"Although defendant is in an age group that may be more susceptible to the virus, this risk pertains whether the defendant were released or detained, and any heightened risk posed by pretrial detention does not outweigh the presumption in favor of detaining the defendant pretrial, nor does it alter the balance of the statutory factors Congress prescribed for determining the propriety of detention, which all continue to weigh heavily in favor of detention," the chief judge wrote.