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COVID-19, Compassionate Release, and the CARES Act: Prison Release in the Pandemic

Jun 16, 2020

 

At first glance, Death Row Records co-founder Michael Harris, notorious “Pharma Bro” Martin Shkreli, and Ponzi scheme king Bernie Madoff may not seem to have much in common. However, all three men recently sought to reduce their lengthy federal prison sentences by asking the court for compassionate release, but all three were denied. Compassionate release – sometimes called medical or geriatric parole – refers to a complex set of statutes, regulations, and policies that allow some prisoners to get out of prison early. Before COVID-19, compassionate release was exceedingly rare. Yet as COVID-19 cases continue to climb, jails and prisons have used compassionate release and similar provisions to reduce their populations.

What is Compassionate Release?

 

 

In the federal system, compassionate release, which is governed by 18 U.S.C. Section 3582, allows courts to reduce a defendant’s sentence for “extraordinary and compelling reasons, such as:

  • Terminal illness
  • The caregiver of the prisoner’s minor child or minor children dies or is incapacitated
  • Significant physical or medical condition, including serious functional or cognitive impairment
  • Advanced age

Before the First Step Act, compassionate release was only available to inmates upon referral from the Bureau of Prisons, or BOP. This meant that most inmates who asked for compassionate release were denied. A December 2019 issue of the Federal Sentencing Reporter summarized the pre-First Step Act statistics for compassionate release:

  • From August 2013 through September 2014, none of the fifty-two elderly inmates who applied received first-guideline compassionate releases, none of the 203 applying elderly inmates received second-guideline compassionate releases, and two of the ninety-three elderly inmates requesting third-guideline compassionate releases received them.
  • Between 2014 and 2017, 3182 inmates requested compassionate releases. Only 306 of those requests were granted. Approximately 24% of requests were from terminally ill inmates, 35% were from seriously ill inmates, 15% were from elderly inmates with medical conditions, and 8% were from other elderly inmates. Only one out of four compassionate release requests from elderly inmates was granted, while one-third of other elderly inmate requests were approved. Eighteen inmates died while their requests were pending.

After the First Step Act, inmates can directly petition the court for compassionate release. While this is a much needed improvement, it still poses substantial hurdles for inmates and their loved ones. For example, inmates with significant medical conditions may struggle to obtain and review extensive medical records that support release. Other issues include navigating the court system, responding to government denials, and formulating an acceptable release plan.

 

What Other Options Are Available?

Besides sentence reduction, inmates can serve the rest of their sentence on home confinement. Before the CARES Act, only 10% of a federal sentence could be served this way, but the BOP can now extend how long someone can serve on home confinement. Attorney General William Barr has also pushed for the BOP to utilize home confinement in order to deal with the novel coronavirus pandemic. In a March 26, 2020 memo, Attorney General Barr listed several non-exhaustive factors for BOP administration officials to consider when evaluating prisoners for home confinement:

  • The age and vulnerability of the inmate in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;
  • The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities;
  • The inmate’s conduct in prison – inmates who have engaged in violent or gang-related activity or who have incurred a BOP violation within the last year don’t receive priority;
  • The inmate’s score under PATTERN – inmates who have anything above a minimum score don’t receive priority;
  • Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting than the inmate would face in BOP custody;
  • The inmate’s crime of conviction, and assessment of the danger posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.

Conclusion

Despite the expanded availability of compassionate release and home confinement, the number of people released remains small because of the bureaucratic and legal hurdles that stand in the way for inmates and their loved ones. At Jayne Law Group, we understand this process and more importantly, we have results. To consult with a licensed attorney, please contact our office immediately for a free consultation.

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