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As COVID-19 Spreads, Possibilities Arise for Bail or Release of At-Risk Inmates

April 13, 2020


“[I]nmates and [prison] staff are incredibly vulnerable to the spread of COVID-19 and immediate steps must be taken to protect these populations from this dangerous disease,” said U.S. Senator Kirsten Gillibrand in an April 3, 2020, letter to U.S. Attorney General William Barr and Director Michael Carvajal of the Federal Bureau of Prisons (“BOP”).  In her letter, Senator Gillibrand explained that: “the risk of community spread poses a critical and unique threat to BOP facilities [and other prisons and jails] across the nation, where inmates and [prison] staff are unable to partake in the social distancing and quarantine recommendations made by the Centers for Disease Control and Prevention [“CDC”].”  Groups such as the Federal Public & Community Defenders, Women’s White Collar Defense Association, CDC, corrections experts, prosecutors, and members of the U.S. House of Representatives have echoed this concern and urged authorities to use all available legal mechanisms to reduce the prison population, including executive clemency, commutation, furlough, compassionate release, and parole.

As the coronavirus spreads through our nation’s prisons, such as Riker’s Island in New York, where more than 231 inmates and 223 staff members have tested positive for COVID-19, and Hudson County Jail in New Jersey, where more than 60 people have tested positive for COVID-19 and the deaths’ of two nurses have been attributed to the disease, local prisons in states including Pennsylvania, New Jersey, New York, and California have developed plans to release at-risk inmates.  State courts and governors have also acted to release at-risk inmates.  For example, on April 6, 2020, a New York County judge temporarily released 18 at-risk prisoners from Rikers Island on due process grounds, stating that: “communicable diseases could not ask for a better breeding ground than a crowded prison.”[1]  Likewise, on April 10, 2020, Pennsylvania Governor Tom Wolf ordered Pennsylvania Department of Corrections officials to establish a temporary program to reprieve sentences for non-violent inmates who are within nine months of release and non-violent, at-risk inmates who are within 12 months of release.  This program, which largely tracks a legislative proposal drafted by the Pennsylvania District Attorneys Association, will allow between 1,500 and 1,800 inmates to be eligible for release.

At the federal level, as of April 12, 2020, 352 inmates and 189 BOP staff have tested positive for COVID-19, and ten federal inmate deaths have been attributed to the disease.  In response, Attorney General Barr has focused primarily on home confinement as the alternative to incarceration for at-risk inmates.  Attorney General Barr has relaxed the qualifying criteria for home confinement — ordinarily limited to inmates with the lesser of six months or 10% of their sentence remaining — and has instructed the BOP to focus on several discretionary factors when making home confinement determinations, including the age and vulnerability of the inmate in accordance with CDC COVID-19 guidelines, the security level of the facility where the inmate is housed, the inmate’s conduct in prison, the inmate’s crime of conviction, and whether the inmate has a verifiable re-entry plan.  Although inmates may submit requests for home confinement along with release plans, the BOP has announced that prison case managers are reviewing all inmates to determine those who meet the criteria for home confinement.

In addition, on April 6, 2020, Attorney General Barr forwarded instructions to federal prosecutors to consider the medical risks associated with individuals being remanded into federal custody when making pre-trial bail recommendations to the courts during the COVID-19 pandemic.  Attorney General Barr’s memo contains several caveats, prioritizes public safety, and is limited to pre-trial bail versus post-conviction, pre-sentence bail.  Although this expansion of home confinement and pre-trial bail provides some relief for at-risk inmates, it is likely that focusing on these mechanisms as the primary avenues for relief may not be sufficient.

Now more than ever, it is critical that at-risk inmates, particularly those over 65 and those with pre-existing conditions such as asthma, cancer, lung disease, heart conditions, diabetes, or autoimmune diseases, be protected from the spread of COVID-19 in federal facilities.  Therefore, in addition to motions for pre-trial release, attorneys for-risk inmates should consider filing motions for bail pending sentencing, or motions for compassionate release for those already serving sentences.  Below, is important information regarding release options for your incarcerated clients who are “at-risk.”

Motions for Release Pending Sentencing or Other Hearings

Pursuant to 18 U.S.C. § 3143, a defendant who has been convicted of a federal offense “shall” be detained pending sentencing “unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released.”  However, 18 U.S.C. § 3145(c) provides that “a person subject to detention pursuant to [18 U.S.C. §] 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.”  Ordinarily, health conditions are not considered “exceptional reasons” warranting release prior to sentencing.  However, this global pandemic which has already claimed thousands of lives in just three months and that is spreading at an ever-increasing rate, is arguably an exceptional reason warranting release.  Therefore, courts have started granting motions for release of inmates deemed to be “at-risk.”

On March 29, 2020, a federal judge in Miami granted a motion for release pending sentencing filed for an inmate convicted of wire fraud, money laundering, and other non-violent crimes.[2]  The judge noted that he was confronted with an, “extraordinary situation of a medically-compromised [inmate] being housed at a detention center where it is difficult, if not impossible, for [the inmate] to practice the social distancing measures which government, public health and medical officials all advocate.”  In granting the motion, the judge considered the following factors: (1) the inmate was convicted of non-violent offenses; (2) the “breaking events” surrounding the spread of COVID-19; (3) the shutdown of the Federal Detention Center to all visitors, including legal visitors, for at least 30 days; (4) and the inmate’s diagnosis of Discoid Lupus Erythematosus, an auto-immune deficiency disease.  The judge acknowledged that the closure of international borders mitigated “flight risk concerns” and stated that the inmate would be “giving himself a medical death sentence if he were to flee to . . . another country with a less sophisticated . . . health system,” making an escape attempt unlikely.  However, the judge ordered strict release conditions, including, a detailed bond package, home confinement, and the surrender of the passports of the inmate and his family.

Motions for Compassionate Release

Similarly, attorneys for at-risk inmates serving sentences have filed motions for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), which allows a court to reduce an inmates’ sentence if it finds that: (1) “extraordinary and compelling reasons” warrant a reduction; (2) the reduction would be “consistent with any applicable policy statements issued by the Sentencing Commission”; and (3) the applicable sentencing factors under § 3553(a) warrant a reduction.  Although at-risk inmates may not necessarily meet the criteria for “extraordinary and compelling reasons” set out in the U.S. Sentencing Commission’s or the BOP’s guidance, courts are excersing their discretion to independently determine whether “extraordinary and compelling reasons” exist for an inmate’s release.  Some courts have held that the COVID-19 pandemic, in combination with an inmate’s pre-existing health conditions and other factors, such as proximity to release date and signs of rehabilitation, constitute “extraordinary and compelling” reasons warranting a sentence reduction.[3]

On April 1, 2020, United States District Court Judge Anita B. Brody in the Eastern District of Pennsylvania (Philadelphia) granted a motion for compassionate release, citing: (1) the inmate’s pre-existing conditions of Type 2 diabetes, hypertension, obesity, and liver problems, as documented by a recent physician’s evaluation; (2) the BOP’s inability to protect the inmate based, in part, on the fact that the inmate’s prison had positive tests for COVID-19; (3) the inmate had served 17 years of his 20-year sentence for drug distribution and firearm possession; and (4) evidence of the inmate’s rehabilitation and reasons why the inmate was no longer a danger to the community, including that he earned a GED, completed an anger management program, and had a relatively clean prison discipline record.[4]

These decisions, and others, present several key practice points for attorneys seeking bail or the early release of their clients during this COVID-19 pandemic.  We will discuss these important practice points in a second alert that will be released later this week.

Montgomery McCracken’s White Collar and Government Investigations attorneys are available to provide advice and assistance in seeking release pending sentencing, compassionate release, or related relief.  Please feel free to reach out to us for assistance.  For information on other coronavirus related issues, see Montgomery McCracken’s COVID-19 Resource Center here.

[1]              Jeffrey, et. al. v. Brann, et al., Index No. 451078/2020 (N.Y. Sup. Ct. Apr. 6, 2020).

[2]              United States v. Grobnman, et. al., No. 18-cr-20989 (S.D. Fla. Mar. 29, 2020).

[3]              See, e.g., United States v. Rodriguez, No. 03-cr-0271-1 (E.D. Pa. Apr. 1, 2020); United States v. Gentry, No. 19-78 (D.N.J. Apr. 6, 2020).

[4]              United States v. Rodriguez, No. 03-cr-0271-1 (E.D. Pa. Apr. 1, 2020).