As COVID-19 continues spreading across the country, prisons have been particularly vulnerable to serious outbreaks of the deadly disease. Recognizing this vulnerability, they have implemented special emergency pandemic operation plans and are quarantining new and infected inmates.
Despite these efforts, prisons continue to see an uptick in COVID-19 cases. As of mid-May, more than 2300 federal inmates and 196 staff had tested positive for the virus, and 57 inmates had died. Like the general population, older inmates and those with underlying health conditions are especially vulnerable.
Given this unprecedented situation, prisoners and their families may be wondering if they could qualify for compassionate release. For some nonviolent offenders, getting released early based on individual health concerns is a possibility. In this blog post, I will discuss how the First Step Act of 2018 opened up this possibility and how the Department of Justice is weighing in on the issue.
Compassionate Release and the First Step Act
Before the First Step Act was passed in December, 2018, compassionate release existed as a Board of Prisons’ (BOP) process whereby inmates suffering from a terminal illness with only a short time left to live or from a type of illness that couldn’t be handled in prison (e.g., Alzheimer’s) could be released early from custody.
As might be expected, the BOP maintained tight control of this process, and very few inmates were ever granted compassionate release. Inmates had to request compassionate release from the BOP and wait for them to file a motion with the court. If the BOP did not file the motion, inmates had no recourse, and, if a motion for early release were denied, their only recourse was to appeal through the long, involved internal Administrative Remedy Program.
Now, under the First Step Act, inmates must still meet stringent criteria for compassionate release, but if their request is not decided in a timely manner or if it is denied, they can act on their own behalf. If the warden fails to act on a petition for compassionate release within 30 days, inmates, their friends or family members can file directly with the district court. If a motion has been denied and inmates have gone through the administrative appeals process, they also have the option of filing this motion in court.
The First Step Act also restricts the BOP’s ability to block or stall a terminally ill inmate’s compassionate release petition. The BOP is required to process a request for compassionate release from a terminally ill inmate within 14 days and has only 30 days from when the request is made to issue a decision. Also, the BOP must post information about the compassionate release process for inmates, including the fact that they can appeal a denial directly to the district court.
Applying the First Step Act during the Coronavirus Pandemic
In memoranda released in March and April, the Department of Justice declared emergency conditions within federal prisons and recommended increasing home confinement for vulnerable inmates at those facilities most impacted by COVID-19.
In accordance with these memoranda, courts have recently placed over 1,000 inmates on home confinement and granted early release to many nonviolent inmates who had “extraordinary and compelling reasons” for release (18 U.S.C. §3582(c)(1)(A)(i).
The DOJ’s position and recent court decisions on early release suggest that the First Steps Act may provide a way to help inmates vulnerable to serious illness from the coronavirus seek release from custody. Petitioners must, however, be very thorough in following all of the steps in the compassionate release process and in detailing the specific medical circumstances that would warrant an early release.
In other words, they must ask the BOP to file a motion with the sentencing court on their behalf and give the BOP 30 days to respond. If the BOP does not respond satisfactorily, they must go through the administrative appeals process before they can file their own motion with the district court. This motion should cite reasons tailored specifically to their particular medical circumstance in reference to the current condition within their particular facility. Remember, the court is looking for “extraordinary and compelling reasons” that justify an early release and assurance that it will not put the community at risk.
Talk with an Experienced Defense Attorney about a Motion for Release
If you or a loved one is currently in a federal prison and may qualify for compassionate release, please contact Haas Law for help filing a motion for early release. As an experienced former federal prosecutor, Attorney Haas understands the Federal Sentencing Guidelines and Compassionate Release process and will put his extensive knowledge and experience to work fighting for your release.
