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COVID-19 & Eligibility for Release from Federal Custody

COVID-19 is especially destructive among the incarcerated population. As of April 15, over 16,000 inmates have been released from custody in the U.S. due to health risks associated with it. The early release of the President’s ex-fixer Michael Cohen to home confinement, and the pretrial release of Michael Avenatti, the controversial lawyer in the Stormy Daniels hush money saga, have brought much attention to the trend in federal district courts to release inmates in federal custody due to the Coronavirus. To date federal district courts have granted nearly 1500 motions for release around the nation.

There is widespread misconception surrounding the release of federal inmates due to the Coronavirus. Release from federal custody based on it falls into three distinct categories: 1. Pretrial release (from pretrial detention) based on bail factors with COVID-19 as a “changed circumstance”; 2. Compassionate Release under 18 U.S.C. 3582(c)(1)(A) and 18 U.S.C. 4205(g) whereby an inmate in a BOP facility may petition to commute his or her sentence due to COVID-19 being “extraordinary and compelling reason not foreseeable at the time of sentencing”; 3. Release to Home Confinement under the 2018 First Step Act, which was broadened by the passage of the CARES Act in response to COVID-19.


What is Required?

Pretrial release turn on bail factors including the seriousness of the crime(s) charged, whether the defendant is a flight risk, his/her ties to the community, and whether there is a danger to the community.

One merely charged with a crime is presumed innocent. But while liberty is theoretically the norm and pretrial detention the exception, many defendants end up detained because bond is denied or they lack the means and resources to post bond.

Typically a defendant in pretrial detention is held in custody through disposition/trial and sentencing. Nonetheless he/she may petition the court for release if there are “changed circumstances” that support release.

What is a “Changed Circumstance”?

A changed circumstance means anything that arises after the defendant’s detention hearing warranting release. It includes a change in the defendant’s personal circumstances, a change in the evidence and facts of the case or in the proceedings, and, more recently, has come to include the COVID-19 health crisis.

What Factors Determine Pretrial Release Based on COVID-19?

Since the outbreak of the virus in the U.S., many courts have found pretrial release necessary because it not only protected the defendant’s health, but also protected the health of the prison population and the wider community.

Courts consider the following factors when evaluating a defendant’s eligibility for pretrial release based on COVID-19:

(1) the bail factors and original grounds for the defendant’s detention;

(2) the specificity of the defendant’s stated COVID-19 concerns including:

a. Prior outbreaks of infectious diseases

b. Number of individuals detained and number of arrestees admitted daily

c. Impact of structure and physical layout of the facility on the risk of spread

d. Limitations on access to personal hygiene items to minimize spread

e. Limitations on access to attorneys and resources necessary for the defense

f. Known issues with sanitary conditions at the facility

g. Limitations on the facility’s medical services and/or staffing

(3) the extent to which the proposed pretrial release plan mitigates or exacerbates other COVID-19 risks to the defendant; and

(4) the likelihood that the proposed release plan would increase COVID- 19 risks to others.


What is Compassionate Release?

“Compassionate Release” under 18 U.S.C. 3582(c)(1)(A) and 18 U.S.C. 4205(g) means the early release of an inmate serving a federal sentence. A court’s grant of compassionate release results in a sentence commutation, so that the inmate is released on “time served” and placed on supervised release (the equivalent of probation under state laws).

Like the courts, the Bureau of Prisons (BOP) may also grant “Compassionate Release,” which similarly results in an inmate being released from prison early. The BOP makes its determination based on whether there is an “extraordinary and compelling reason not foreseeable at the time of sentencing.”

What are the Requirements for Filing a Compassionate Release Motion?

Before filing a motion with the court for compassionate release, the inmate must have “exhausted all administrative remedies,” which requires that:

  • The inmate request that the BOP file a motion for his/her early release

  • The warden respond within 30 days and either deny or grant the request (note: these requests are routinely denied) and

  • In the event of a denial, the inmate proceed with multiple appeals to the BOP Regional Director and the BOP General Counsel for a final decision.

The appellate process is bureaucratic, often futile, and time consuming. The 2018 First Step Act, however, modified this process so that once thirty days have lapsed since the inmate’s internal request for a motion, he/she may proceed as if all administrative remedies have in fact been exhausted.

The motion must be filed in the same federal court where the defendant was sentenced, and is usually heard by the sentencing judge.

What Makes a Winning Motion?

To prevail, the defendant seeking compassionate release must demonstrate that:

· “Extraordinary and Compelling Reasons not foreseeable at the time of sentencing” justify early release from prison;

· Early release is not a risk to the community and is reasonable pursuant to 18 U.S.C. § 3553; and

· Proposed conditions of supervised release are sufficient and reasonable.

What are “Extraordinary and Compelling Reasons Not Foreseeable at the Time of Sentencing?”?

The BOP and the United States Sentencing Commission have separate – somewhat overlapping – standards defining “Extraordinary and Compelling Reasons” in the context of compassionate release. The defense motion must satisfy both standards.

Among the factors the U.S. Sentencing Commission considers when analyzing whether “extraordinary and compelling” reasons exist are:

  • Defendant’s medical condition

  • Defendant’s age (in light of the percentage of sentence served)

  • Defendant’s family circumstances

The BOP’s non-exclusive list of discretionary factors impacting the “extraordinary and compelling” analysis includes:

§ Nature and circumstances of the offense

§ Criminal history

§ Victim impact statements

§ Unresolved detainers and warrants

§ Supervised release violations

§ Institutional violations

§ Disciplinary infractions

§ Personal history derived from the Pre-sentence Report (PSR)

§ Length of sentence and amount of time served

§ Inmate’s current age

§ Inmate’s age at the time of sentencing

§ Inmate’s release plans (employment, medical, financial)

§ Whether release would minimize the severity of the offense

What are the Factors under 18 U.S.C. § 3553 and How Does the Defendant Prove He/She is not a Risk to the Community?

Factors under 18 U.S.C. § 3553 are:

  • Nature of the offense

  • History and characteristics of the defendant

  • Types sentences available (e.g., home confinement)

  • Need for the sentence imposed to reflect the seriousness of the offense

  • Need for the sentence imposed to afford adequate deterrence

  • Need for the sentence imposed to protect the public

Risk to community is evaluated under the same standard as for bail and pretrial detention.

What Plan and Conditions of Supervised Release Justify Early Release?

The motion for Compassionate Release must provide a release plan that is clear and reasonable in light of the factors and standards the court considers. The plan must include where the defendant will live upon release, his/her source of income and support, and any other factors that demonstrate stability.

The release plan must also include conditions such as curfew, location monitoring, or home detention to address the court’s concerns regarding risk of danger and community safety.

What Happens After the Motion for Compassionate Release is Granted?

Once the court grants a motion for compassionate release, the defendant’s term of imprisonment is commuted and deemed “time served.”

Motions for compassionate release require administrative compliance within the BOP and turn on the fast-changing statistics regarding the infection rates and conditions at each detention facility. They have to be specifically tailored to reflect the defendant’s circumstances and the conditions of the BOP facility where he or she is housed. There is no bright-line rule to determine qualification for compassionate release, as courts will evaluate release on a case-by-case basis.


As part of the 2018 First Step Act, Congress amended 18 U.S.C. § 3621(c) by directing that:

“The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph. The maximum amount of time that a prisoner may spend on home confinement is ten percent of their sentence or six months, whichever is less.”

The CARES Act, passed into law on March 27, 2020, further directs the Attorney General to broaden the criteria for release to home confinement to the extent allowable under the law.

What is the Difference Between Compassionate Release and Early Release to Home Confinement under the First Step Act?

Unlike Compassionate Release, release to home confinement under the First Step Act does not require exhaustion of administrative remedies within the BOP. Inmates can file directly with the court a motion seeking release to home confinement, without any administrative steps or hurdles. But release to home confinement under the First Step Act does not commute the inmate’s sentence to time served. Instead, it allows the defendant to serve the remainder of his time on home confinement.

Who Qualifies for Home Confinement Under the First Step Act?

There are two categories of inmates who qualify for home confinement:

· Low Risk Offenders – individuals who have served all but the lesser of 10% or the last 6 monthsof their term of commitment and

· Elderly Offenders and Terminally Ill Offenders as part of a BOP Pilot Program

1. Elderly Offenders must be at least 60 years old and have served at least 2/3 of their termof commitment. The requirement that the inmate serve all but the lesser of 10% or 6 months of their term is waived as to this population.

2. Terminally Ill Offenders must be in need of a nursing home, intermediate care or assisted living OR be diagnosed with a terminal illness. This population need not have served any minimum part of their term of commitment.

3. As to both categories in the Pilot Program, the inmate may not have been convicted for a crime of violence or sex offense, convicted in the past of any state or federal sex or violent offense, have a history of violence or have engaged in a sex offense, have escaped or attempted to escape from a BOP institution, and must be determined to be pose no substantial risk of reoffending or endangering the public once released.

What is the Impact of COVID-19 on Eligibility for Home Confinement?

In response to the COVID-19 pandemic, its impact on BOP facilities, and the passage of the CARES Act, the Attorney General has issued multiple directives to the BOP to use its authority by swiftly releasing inmates to home confinement.

The Attorney General has directed the BOP to utilize home confinement pursuant to its statutory authority and the existing criteria, and to make its assessment based on the totality of circumstances, including the following discretionary criteria:

· The age and vulnerability of the inmate to the virus (per CDC guidelines)

· Security level of the facility where the inmate is housed (priority given to low and minimum security facilities)

· Inmate’s score under PATTERN (prison behavioral assessment module)

· Whether the inmate has demonstrated a verifiable release/re-entry plan that prevents recidivism and maximizes public safety including conditions that demonstrate release would present a lower risk of contracting COVID-19

· Inmate’s crime of conviction and whether the inmate poses a danger to the community (sex and violent offenses render the inmate ineligible and certain other serious offense will waive heavily against consideration for home confinement.

The Attorney General also has directed the BOP to prioritize home confinement release to vulnerable inmates and those housed at facilities with significant levels of infection. To facilitate home confinement transfers under the First Step Act, the Attorney General has authorized transfers even without electronic monitoring.

What Factors Does the Court Consider in a Motion for Release to Home Confinement in Response to COVID-19?

As hundreds of inmates and BOP prison staff are infected with the corona virus, courts across the nation are granting motions for early release to home confinement. As of April 16, 2020, nearly 1200 federal inmates were transferred to home confinement either directly through the BOP or pursuant to motions filed in district courts. In determining whether COVID-19 warrants early release to home confinement, the court considers the following factors:

1. The inmate is a low risk offender

2. The crime of conviction is non-violent and is not a sex crime or terrorism

3. The infection rate and conditions at the facility where the inmate is housed

4. The inmate’s age

5. The inmate’s health conditions and susceptibility to the virus

6. The percentage of the term of commitment the inmate has served

For more information regarding the release of an individual from federal custody, please contact our office: (213) 622-5000 |


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