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MOTIONS FOR RELEASE BASED UPON THE COVID-19 PANDEMIC

The COVID-19 pandemic is an unprecedented event in our lifetime.  Local detention centers and Bureau of Prisons (BOP) facilities are ground zero for the infection and spread of the virus and do not have the capability of handling this catastrophic situation. Press coverage on the situation is ongoing, but you can check out some links below to articles discussing the outbreak in detention centers and prisons in D.C., Maryland, and Virginia.

Federal Bureau of Prisons

District of Columbia

Maryland

Virginia

Local Conditions

On March 25, 2020, the Department of Corrections (“DOC”) announced its first positive test of COVID-19 for an inmate at the DC Jail. To serve as an example of the swift contagious nature of this virus, as of April 16, 2020, there were 56 known positive cases of the virus in the inmate population, and another 456 inmates being held in quarantine[1]. In the four days that followed, as of April 20, 2020, there were 96 positive cases of the virus among inmates, with an additional 954 prisoners being held in quarantine, nearly two-thirds of the jail population[2].

On March 30, 2020, the ACLU-DC and the Public Defender Service filed a class-action lawsuit against the DOC on behalf of those being held by the DOC.  The lawsuit was based on the “unsafe, unsanitary, and deadly” conditions at the DC Jail and Central Treatment Facility (“CTF”), as well as prisoners Fifth and Eighth Amendment rights under the U.S. Constitution[3]. After the Court ordered an independent investigation in the DOC’s facilities, it issued a Memorandum Opinion in Banks v. Booth 2020 U.S. Dist. LEXIS 68293.

In granting a Temporary Restraining Order (“TRO”), the Banks Court found that there was factual evidence to support the claims of lack of and misuse of protective equipment (“PPE”) within the facility, failures to socially and physically distance, extremely limited out-of-cell time, limited or no access to confidential legal calls, people spending days in isolation with no showers, and the lack of cleaning supplies and basic training about how to use those supplies. Simply put, the DOC is incapable of protecting inmates and the inadequate precautionary measures increased the risk of contracting COVID-19 and facing serious health consequences, including death.

Price Benowitz relied upon the decision in Banks in obtaining the successful release of a client. In its memorandum opinion, in that case, the Court found that the COVID-19 pandemic amounted to a “compelling reason” under 18 U.S.C. §3142(i) justifying release and rejected the Government’s argument that the Court should just wait patiently for the DOC to implement and execute the preventive measures ordered by the Banks court.

On May 1, 2020, United States District Court Judge George Hazel released the defendant in United States v. Sturmer[4],  due to the increasing inability of the DOC to protect the defendant and other inmates.  Citing Banks, Judge Hazel expressly noted that the “D.C. Jail acted in deliberate indifference to inmate health and safety because it was aware of the risks of COVID-19” but “‘disregarded those risks by failing to take comprehensive, timely, and proper steps to stem the spread of the virus.”[5]

Bureau of Prisons Procedure

Filing a motion for compassionate release from custody is a viable path to help gain release for clients who are currently incarcerated, especially individuals with specific, identifiable medical conditions that put them at even higher risk of contracting COVID-19. Both the Superior Court for the District of Columbia and federal district courts have prescribed procedures for how to file this type of motion.

Exhausting Administrative Remedies Before Filing in Court

Before filing a motion for compassionate release with the court, an inmate in the BOP must exhaust all administrative remedies at the facility where he or she is held. If a person committed an offense prior to November 1, 1987, it is governed by 18 USC § 4205(g); any offense committed after that date is governed by 18 USC § 3582(c)(1)(A).

The procedure requires an inmate to submit a written request for compassionate release to the warden at his or her institution based upon extraordinary or compelling circumstances that could not reasonably have been foreseen at the time of sentencing. The request should include at a minimum: 1) a detailed description of the extraordinary or compelling circumstances that the inmate believes warrant consideration; and 2) proposed release plans, including employment, medical, and financial plans.

An inmate can make this request based upon: 1) medical circumstances; 2) old age; 3) death or incapacitation of the family member caregiver, and 4) incapacitation of a spouse or registered partner. Additional factors such as the nature and circumstances of the inmate’s offense, criminal history, institutional adjustment, length of time served, personal history, among other factors are to be taken into account.

Denial of Request

If for any reason the inmate’s request is denied by the warden, the inmate is entitled to receive a written notice and a statement of reasons for the denial. The inmate may appeal through the Administrative Remedy Procedure pursuant to 28 CFR part 542, subpart B.

The First Step Act of 2018 amended the procedural requirements for a motion to reduce the sentence to provide compassionate release as provided by 18 U.S.C. § 3582(c)(1)(A).  Because of this amendment, a defendant may now move, individually, for compassionate release “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons [“BOP”] to bring a motion on the defendant’s behalf or lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.”

Exceptions to the Exhaustion Requirement

There are generally three bases for waiver of an exhaustion requirement.[6]

  1. Exhaustion may be unnecessary where it would be futile, either because the agency decision-makers are biased or because the agency has already determined the issue.
  2. Exhaustion may be unnecessary where the administrative process would be incapable of granting adequate relief, including where the relief the agency might provide could, because of undue delay, become inadequate.
  3. Exhaustion may be unnecessary where the pursuing agency review would subject plaintiffs to undue prejudice.

Administrative Remedies Have Been Exhausted

To consider a sentence reduction for compassionate release, a defendant must show the court that “extraordinary and compelling reasons warrant such a reduction.”  18 U.S.C. § 3582(c)(1)(A).  By statute, such a reduction must also be consistent with the applicable policy statements issued by the U.S. Sentencing Commission.  Additionally, before the compassionate release can be granted, the Court must consider the 18 U.S.C. 3553(a) sentencing factors to the extent relevant.

The Application Notes to U.S. Sentencing Commission Guideline (“U.S.S.G.”) § 1B1.13 explain that a defendant’s medical condition may constitute “extraordinary and compelling reasons as determined by the Director of the BOP.  Commentary Note 1(A).  However, following the First Step Act provisions, a number of federal district courts have recently held that courts may also similarly determine that “extraordinary and compelling” reasons may exist beyond those delineated by the commentary on § 1B1.13.  Other courts have recognized that the   Sentencing Commission guidance on the statute has not yet been updated to reflect the liberalization of the procedural requirements provided by the First Step Act.

Accordingly, over the past few weeks, a number of district court judges have granted motions for release for “extraordinary and compelling reasons” under the statute, based on the recognized dangers presented by the COVID-19 crisis in the prison setting and for a variety of risks that result from the medical conditions of inmates.  In each of these cases, district court judges recognized that they possessed the power to determine what constitutes an “extraordinary and compelling” ground for compassionate release, and granted relief promptly, in some cases even before the thirty days administrative requirement had passed from the time of the defendant’s initial BOP request.  These courts recognized that stemming the extraordinary threat posed by COVID-19 is far more important than adherence to administrative processes that could cost an individual his or her life.

CARES Act

On March 27, 2020, the Coronavirus Aid, Relief and Economic Security Act (CARES Act) was enacted.  Pursuant to Section 12003(b)(2) of the Act, if the Attorney General finds that emergency conditions will materially affect the functioning of the BOP, the maximum amount of time that a prisoner may be placed in home confinement can be increased.  Previously, the maximum amount of time that could be served in home confinement was the lesser of 10 percent of the term of incarceration or six (6) months. The CARES Act greatly expands that authority to allow prisoners to be transferred to home confinement earlier in their sentence. Under the CARES Act, the Director may lengthen the maximum term of home confinement to whatever he determines appropriate during the pandemic, including the entire remaining sentence of the inmate.

On April 3, 2020, Attorney General William Barr issued a Memorandum invoking his authority under the CARES Act, finding that an emergency condition exists within the BOP due to the COVID-19 virus that materially affects the functioning of the BOP.  The Attorney General stated:

I hereby make that finding and direct that, as detailed below, you give priority in implementing these new standards to the most vulnerable inmates as the most affected facilities. . . . For all inmates whom you deem suitable candidates for home confinement, you are directed to immediately process them for transfer and then immediately transfer them following a 14-day quarantine at an appropriate BOP facility, or, in appropriate cases subject to your case-by-case discretion, in the residence to which the inmate is being transferred.

While courts are not authorized to release inmates under the provisions of the CARES Act, inmates who remain detained in BOP facilities should contact a knowledgeable criminal defense attorney for assistance in writing to the warden of their facility and the BOP to request their immediate release under Section 12003(b)(2) of the CARES Act.  Such a step serves to further document an inmate’s attempts to exhaust administrative remedies and can serve as the basis for a subsequent motion for compassionate release should the BOP fail to respond timely and sufficiently to the inmate’s letter.


[1] See Amanda Korber, “Reflections on the Crisis in DC’s Jail on Emancipation Day,” Legal Aid Society of D.C. (April 16, 2020),  https://tinyurl.com/y9gkqc64.

[2] See Public Safety Agency COVID-19 Case Data, https://coronavirus.dc.gov/page/public-safety-agency-covid-19-case-data.

[3] Id.

[4] 2020 U.S. Dist. LEXIS 77195  (D. Md. May 1, 2020)

[5] United States v. Sturmer, 2020 U.S. Dist. LEXIS 77195

[6] United States v. Perez, 2020 U.S. Dist. Lexis 57265 (S.D.N.Y. Apr. 1, 2020)

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