“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Despite his advanced age and the prison’s high COVID-19 rate, Trump Ninth Circuit judge Daniel Collins cast the deciding vote against an incarcerated man’s motion for release on bail pending his appeal. The May 2020 case is U.S. v. Dade.

In 2002, John Ernest Dade was sentenced to 28 years in federal prison. Although the crimes he committed are misdemeanors under Idaho law, because Dade traveled from Utah to Idaho to commit them, they were prosecuted under federal law and he received a long sentence. Dade has already served 18 years and first appealed his conviction in 2006.

At FCI Lompoc, where Dade is incarcerated, more than 75 percent of those confined there tested positive for COVID-19.  Dade was in the high risk group for contracting the virus because of his age and respiratory issues, yet prison officials did not take those factors into consideration. Instead, Dade was housed with “hundreds of other individuals, sleeping approximately 26 inches apart in double bunk beds.”  To protect themselves, individuals in the facility were given two see-through handmade masks that were not consistently worn and could only be washed in communal sinks and air-dried.

Dade filed a motion to be released on bail pending the appeal of his conviction. Dade sought relief directly from the Ninth Circuit rather than first going to the district court.

In 2-1 decision, the majority held that the risk of contracting COVID-19 was not enough to warrant his release on bail pending his criminal appeal. The majority, including Collins, claimed that release pending appeal is “reserved . . . for extraordinary cases.” They held that Dade did not demonstrate special circumstances for release or that he is unlikely to flee or pose a danger to the community if released.

Judge Marsha Berzon strongly disagreed. She explained that bail pending appeal is warranted because Dade established both a high probability of success on the merits and special circumstances, specifically the COVID-19 pandemic and his respiratory issues. She went on to say that just one month prior, in April 2020, the government assured the court that the risk of COVID-19 infection at the facility was being adequately mitigated and that they were taking “aggressive steps to protect inmates’ health to limit the spread of COVID-19,” which suggests that Dade was at little risk of contracting the virus. However, “Dade’s own reports of the on-the-ground situation turned out to be exceedingly more accurate, disturbingly so.“

Rather than rejecting Dade’s motion, Berzon concluded that the case should be resolved by the lower court. “Whether Dade continues to pose a threat and what restrictions would be appropriate to mitigate that threat are questions of fact that the district court is better positioned than this panel to resolve,” she said.

More than four months into the coronavirus pandemic, the death toll in the U.S. continues to rise. Many vulnerable communities, including those who are incarcerated, are at high risk of contracting or dying from the virus. John Ernest Dade is at especially high risk due to his age and history of respiratory issues. Yet because of Judge Collins’ deciding vote, Dade must remain in a facility that jeopardizes his health and safety.