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As COVID-19 Spreads, Possibilities for Bail or Release of At-Risk Inmates: Practice Points

April 16, 2020


In an alert published earlier this week, we discussed the vulnerability of inmates and prison staff to the spread of the COVID-19 virus and outlined the steps that governments and courts are taking to release at-risk inmates and reduce prison populations.  We also discussed how attorneys representing inmates in federal custody can file motions for bail or compassionate release in an effort to secure their clients’ release.  Since we published that alert three days ago, 97 more federal inmates have tested positive for the coronavirus, and six more federal inmates’ deaths have been attributed to the disease, demonstrating the severity of the threat COVID-19 poses to at-risk inmates.  In this alert, we provide a more detailed analysis of recent decisions and offer important practice points that should improve the likelihood of success in achieving pre-sentence bail or compassionate release for clients.

Motions Should be Specifically Tailored to the Inmate

First, attorneys should tailor motions to their client’s individual circumstances, including identify their specific risk factors and the current state of the institution in which they are held.

In an opinion granting a motion for release pending sentencing, a federal judge in the Southern District of Florida (Miami) noted that:

Because this Order arises from one defendant’s individual medical condition, it should not be viewed as a determination that FDC is unable to adequately provide medical screening or treatment to its detainees, that detention at FDC is generally unsafe, or that detention there is generally inappropriate or unduly risky.[1]

Motions that identify the inmate’s specific risk factors and the status of the specific institution provide courts with the necessary criteria to find the existence of “exceptional” or “extraordinary and compelling” reasons necessitating release as required by 18 U.S. Code § 3145 (pre-sentence bail) and 18 U.S. Code § 3582 (compassionate release), respectively.  Courts that have already granted these motions have cited to the inmate’s specific medical diagnosis (which seems to be prioritized over advanced-age in general) and, where applicable, discussed the number of confirmed cases of COVID-19 within the facility.[2]  Courts have also cited to the non-violent nature of an inmate’s offense(s), how long the inmate has already spent in prison, and evidence that the inmate is not a danger to the community, such as the completion of education, drug rehabilitation, or anger management programs taken by the inmate.[3]

In contrast, in denying a recent motion for compassionate release filed on behalf of a 61-year-old man convicted of narcotics distribution and money laundering through a Bitcoin exchange, United States District Court Judge Jed S. Rakoff in the Southern District of New York (Manhattan) stated that: “unlike many of the prisoners who have applied in recent days for release because they suffer from asthma, diabetes, heart disease, or other deleterious health conditions that make them unusually vulnerable to the effects of COVID-19 – [the inmate] is in reasonably good health.”[4]  Judge Rakoff admitted that the inmate’s age of 61 put him at a higher risk of experiencing complications from COVID-19 than the general prison population but explained that: “if [the inmate’s] age alone were a sufficient factor to grant compassionate release in these circumstances, it follows that every federal inmate in the country above the age of 60 should be forthwith released from detention, a result that does not remotely comply with the limited scope of compassionate release and that would arguably have a devastating effect” on the nation.

Support Motions with Documentation When Possible

To support the identification of specific health-related risk factors, attorneys should provide courts with records from their client’s most recent medical evaluations documenting their pre-existing conditions.  For example, in granting a motion for compassionate release, United States District Court Judge Anita B. Brody in the Eastern District of Pennsylvania (Philadelphia) quoted the inmate’s medical records identifying the inmate as being in the “higher risk category.”[5]

In contrast, a federal judge in Washington D.C. denied a motion for compassionate release filed by Brynee Baylor, a former cast member of the Real Housewives reality TV series, in part, because of the lack of  “recent medical information regarding her kidney problems.”[6]  Likewise, in the New York case discussed above, Judge Rakoff noted that the inmate’s sister wrote a letter to the court stating that the inmate’s history of substance abuse likely caused damage to the inmate’s lungs, heart, kidney, and liver.  Judge Rakoff rejected the inmate’s assertion that he had additional risk factors because his motion was not supported by any documentation—medical or otherwise—supporting the sister’s claims of the inmate’s physical impairment as a result of his substance abuse.[7]

Propose Strict Release Conditions

Courts are more likely to grant release or bail motions that include a proposal of strict conditions for release.  For example, in the Miami case discussed above, the judge ordered a detailed bond package, home confinement, and the surrender of the inmate’s and his family’s passports.  Likewise, in agreeing to release former Peruvian President Alejandro Toledo Manrique pending his extradition hearing, a federal judge in California imposed strict conditions of release.

Relatedly, to minimize the risk of spreading the virus to others upon their release, inmates should be prepared to agree to a 14-day self-quarantine period and should give specific details about where and with whom they plan to live and how they will access medical care on the outside.

Follow Procedural Requirements if Possible

Although the spread of COVID-19 poses an imminent threat to inmates, attorneys will likely have greater success in obtaining release for their clients if they comply with the existing procedural requirements of the First Step Act.  Specifically, before filing a motion for compassionate release in federal court, an inmate must exhaust administrative remedies with the BOP, which requires inmates to send a letter to the warden of their facility and wait 30 days for a decision.  A denial from the warden and the inmate’s exhaustion of all appellate remedies (or the passing of 30 days) triggers the District Court’s ability to consider a Motion for Release.

Some courts have waived the First Step Act’s exhaustion requirement upon consent of the government.[8]  Other courts have waived this procedural requirement for at-risk inmates during the COVID-19 pandemic on emergency grounds, relying on Supreme Court precedent that allows courts to waive administrative exhaustion requirements if exhaustion would be futile, the exhaustion process would be incapable of granting adequate relief, or where pursuing agency review would subject the person seeking relief to undue prejudice.[9]  However, many courts, including the Third Circuit Court of Appeals, have denied motions for compassionate release for inmates who did not administratively exhaust their claims.[10]  Therefore, although emergency motions may be necessary given the circumstances, inmates should comply with procedural requirements to the greatest extent possible.  At the very least, inmates—or someone on their behalf—should send dated letters to their wardens and keep a copy for their records, demonstrating the attempt to comply with the BOP’s administrative process.

If Possible, Negotiate an Agreement with Prosecutors

Several prosecutors around the country agree that at-risk inmates who do not pose a significant threat to the community should be released.  Therefore, attorneys for these inmates should attempt to negotiate an agreement for release with the prosecutor in their case.  This has worked for a number of inmates, including Jose Maria Marin—the 87-year-old former president of the Brazilian soccer federation involved in the FIFA corruption scandal—who, with the consent of the assigned federal prosecutors, was recently released by a federal judge in the Eastern District of New York.[11]  Likewise, prosecutors recently joined a request from one of the mothers in the “Varsity Blues” case to delay any prison term during the COVID-19 pandemic.[12]  In fact, a group of attorneys who reviewed 70 COVID-19-based compassionate release motions report that compassionate release was granted in all of the cases where the government consented to the relief sought.

Although following these recommendations will not guarantee success, they will improve your client’s chances of receiving bail or release.  For more information concerning efforts to reduce prison populations, see the Families Against Mandatory Minimums’, the Defender Services Office’s, and the National Association of Criminal Defense Lawyers’ COVID-19 resource pages.

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

[2]              On April 2, 2020, Chief Judge Roslynn R. Mauskopf of the Eastern District of New York issued an administrative order requiring three correctional facilities in that district to provide the court with a written status report, twice a week, concerning the number of COVID-19 infections at each facility and the measures undertaken by the facilities to mitigate the spread of the disease.  The court did so to provide its judges and litigants with current, consistent, and accurate information to assess the common issues underlying motions for release.  Attorneys who represent at-risk inmates in other districts should consider moving for similar orders.

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

[4]              United States v. Haney, No. 19-cr-541 (S.D.N.Y. Apr. 13, 2020).

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

[6]              United States v. Baylor, 16-cr-0180 (D.D.C. Mar. 27, 2020).

[7]              United States v. Haney, No. 19-cr-541 (S.D.N.Y. Apr. 13, 2020).

[8]              See United States v. Webb, et. al., 15-cr-00252-8 (E.D.N.Y. Mar. 30, 2020); United States v. Gentry, No. 19-78 (D.N.J. Apr. 5, 2020).

[9]              See United States v. Haney, No. 19-cr-541 (S.D.N.Y. Apr. 13, 2020) (citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992)); United States v. Sawicz, No. 08-cr-287 (E.D.N.Y Apr. 10, 2020); United States v. Colvin, No. 19-cr-179 (D. Conn. Apr. 2, 2020).

[10]             See, e.g., United States v. Raia, No. 20-1033 (3d Cir. Apr. 2, 2020); United States v. Seng, No. 15-cr-706 (S.D.N.Y. Apr. 10, 2020); United States v. Johnson, No. 14-cr-4-0441, 2020 WL 1663360 (D. Md. Apr. 3, 2020).

[11]             United States v. Webb, et. al., 15-cr-00252-8 (E.D.N.Y. Mar. 30, 2020).

[12]             United States v. Henriquez, No. 19-10080 (D. Mass. Mar. 30, 2020).