The Bureau of Prisons (BOP) has 131,517 federal inmates in BOP-managed institutions and 13,396 in community-based facilities. The BOP staff complement is approximately 36,000. There are 1,513 federal inmates and 152 BOP staff who have confirmed positive test results for COVID-19 nationwide. Currently, 5,113 inmates and 575 staff have recovered. There have been 90 federal inmate deaths and 1 BOP staff member death attributed to COVID-19 disease. See Federal Bureau of Prisons’ Covid-19 Website.
COVID-19 Home Confinement Information
Given the surge in positive cases at select sites and in response to the Attorney General Barr’s directives, the BOP began immediately reviewing all inmates who have COVID-19 risk factors, as described by the CDC, to determine which inmates are suitable for home confinement. Since the release of the Attorney General’s original memo to the Bureau of Prisons on March 26, 2020 instructing the BOP to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 4,552 inmates on home confinement; an increase of 160 percent. See Federal Bureau of Prisons’ Covid-19 Website.
What is Compassionate Release for Covid-19?
Federal law authorizes the BOP to allow certain inmates to request ‘Compassionate Release’ which allows for home confinement or early release from Federal prisons under ‘extraordinary and compelling’ circumstances. Additionally, the First Step Act allows judges to release federal inmates during this pandemic, especially those with serious illnesses or conditions or those that are vulnerable to respiratory issues that can be particularly harmful if infected with the Coronavirus.
What is The First Step Act?
The First Step Act was passed to facilitate an inmate’s successful transition back to society. Consequently, those serving prison sentences now have a new opportunity to file a motion for compassionate release. Initially, inmates had to request early release directly from the BOP and if they agreed, the BOP would file a motion with the court requesting the inmate’s early release. But, the BOP rarely filed motions for inmates. Now, if the BOP refuses the request, federal prison inmates can petition the court for early release directly.
Who Qualifies For Compassionate Release?
Inmates with ‘extraordinary and compelling circumstances’ may qualify. The BOP and the U.S. Sentencing Commission have standards outlining the types of ‘extraordinary and compelling circumstances’ for which one may seek a reduced sentence or early release. See 18 U.S.C. 3582 and 4205(g).
What Are Extraordinary and Compelling Circumstances?
Courts have repeatedly held that if an inmate has a chronic medical condition that has been identified by the Centers for Disease Control as elevating an inmate’s risk of becoming seriously ill from COVID-19, that condition may constitute “extraordinary and compelling reasons.”
What Are Chronic Medical Conditions?
Chronic diseases are defined broadly as conditions that last 1 year or more and require ongoing medical attention or limit activities of daily living or both. Chronic diseases such as heart disease, cancer, and diabetes are the leading causes of death and disability in the United States. They are also leading drivers of the nation’s $3.5 trillion in annual health care costs. See Centers For Disease Control and Prevention.
Inmates who are not a flight risk or a danger to the community may be released under the Compassionate Release Program. Whether an inmate is a flight risk or a danger to the community is often measured by the Bail Reform Act, which details what should be considered before an inmate is released on bail before trial. If an inmate was on bond before trial, this may show that they are not a flight risk and that they do not pose a significant danger to the community. Some of the factors to be considered include:
- Nature of the crime committed
- Evidence against the inmate
- Character and history of the inmate:
- the current physical and mental condition of the inmate
- ties to family and/or local community
- criminal history
- history of drug or alcohol abuse
- Length of sentence and time served
- Release plans:
- future employment
- medical condition
- financial situation
According to sentencing guidelines, 18 U.S. Code §3553, courts should also consider:
- The need for the sentence that has been imposed
- Whether the sentence reflects the gravity of the offense
- Whether the sentence provides adequate deterrence
- The types of sentences available for the crime committed
- Whether the sentence sufficiently protects the public
These factors will usually dictate whether an inmate qualifies for compassionate release and should be the starting point when considering filing for compassionate release.
How to File for Compassionate Release
Prior to filing a motion for compassionate release with the court, according to the First Step Act, you must first exhaust your administrative remedies with the BOP.
Initially, you must request home confinement or early release from the BOP as part of the Compassionate Release Program and wait at least 30 days for the BOP to respond. The BOP is required to respond to your request in writing withing 30 days. If the BOP does not respond to your request within 30 days, you have exhausted your administrative remedy and may proceed with a motion for compassionate release with the courts.
The BOP normally responds to early release requests within 30 days and usually rejects most of those requests. If your initial request is denied, you must exhaust your administrative remedies by appealing that denial withing 20 days and obtain a final decision.
How Do I Obtain a Final Decision and Exhaust My Administrative Remedy?
- Request home confinement or early release from the BOP. The request will be granted or denied within 30 days.
- If the request is denied, you have 20 days to appeal the decision (file a BP-9). The deadline for completion and submission of a formal written Administrative Remedy Request, on the appropriate form (BP-9), is 20 calendar days after your initial request was denied.
- If you are not satisfied with the Warden’s response to your BP-9, you may submit an Appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response.
- If you are not satisfied with the Regional Director’s response to your BP-10, you may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response. The Appeal to the General Counsel is the final administrative appeal.
After the final decision has been received and the request for home confinement or early release has been rejected, you are free to file directly with the court.
Should I Contact a Federal Criminal Defense Attorney?
If you or a loved one are incarcerated in a federal institution and believe that you qualify for relief due to the coronavirus, it is important that you discuss your situation with an experienced federal criminal defense lawyer to learn about your options. The process and laws are complex. You may need the assistance of an experienced federal criminal defense attorney to get a favorable resolution.
Why Fernandez & Hernandez?
The attorneys at Fernandez and Hernandez have experience defending federal defendants and will work vigorously to exercise your rights, and may be able to get you some relief. The criminal defense attorneys at Fernandez & Hernandez have the federal experience necessary to deal with and resolve federal release issues. The attorneys at Fernandez & Hernandez are bilingual and will provide a free and confidential consultation so that you can discuss your case. The criminal defense attorneys at Fernandez & Hernandez can help you understand all of your options.
The experienced criminal defense attorneys at Fernandez & Hernandez aggressively represent their clients. Daniel J. Fernandez has represented clients in federal criminal cases throughout the United States.
If you or someone you know has been incarcerated in federal prison and believe that you qualify for home confinement or early release and need help, Fernandez & Hernandez will guide you through the process. Fernandez & Hernandez can assist you in getting the outcome you deserve. Federal cases are complex. Fernandez & Hernandez may be able to help you find a solution.
Federal criminal defense attorney Daniel J. Fernandez has experience with federal cases and will work diligently to get your situation resolved favorably. Attorney Daniel J. Fernandez can help guide you through the process.
If you or a loved one need legal assistance with a compassionate release issue call Tampa Federal Criminal Defense Attorney Daniel J. Fernandez of Fernandez & Hernandez at 813-229-5353.