COVID-19 RELEASE FROM FEDERAL CUSTODY
Are you or a loved one eligible for bail and/or compassionate release due to the COVID-19 Corona Virus pandemic?
COVID-19 poses a heightened threat in jails and prisons and is especially destructive among the incarcerated population.
Individuals in federal custody who are in pretrial detention or serving a sentence at a federal institution should consult with an experienced federal criminal defense attorney to determine whether they are eligible for release under the laws in response to the pandemic.
COVID-19 PRETRIAL RELEASE
What is required for Pretrial Release?
Pretrial release of a defendant turns 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 they pose a danger to the community.
Although typically a defendant in pretrial detention is held in custody through disposition/trial and sentencing, he/she may petition the court for release if there are “changed circumstances”.
A changed circumstance means any fact or circumstances that arises after the defendant’s detention hearing warranting release under the law. The COVID-19 pandemic is a changed circumstance.
What is a "Changed Circumstance"?
Courts consider the following factors when determining pretrial release in response to 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 at the facility
c. Impact of structure and physical layout of the facility on the risk of spread
d. Limitations on access to personal hygiene items
e. Limitations on access to attorney visitation and resources
f. Issues with sanitary conditions at the facility
e. Limitations on the facility’s medical services and/or staffing
3) the extent to which the defendant’s proposed pretrial release plan mitigates or exacerbates other COVID-19 risks to the defendant
4) the likelihood that the defendant’s proposed release plan would increase COVID- 19 risks to others
What Factors Do Courts Use to Determine Release Based on COVID-19?
For more information about eligibility for compassionate release in light of the corona virus pandemic contact our office for a free consultation.
COVID-19 COMPASSIONATE RELEASE
What is Compassionate Release?
“Compassionate Release” means the early release of an inmate who is serving a sentence at a BOP institution for a federal offense.
Under compassionate release laws, a sentencing court may reduce the term of imprisonment and immediately release an inmate by reducing the minimum term to time served. According these laws, the BOP may grant “Compassionate Release” to an inmate due to an “extraordinary and compelling reason not foreseeable at the time of sentencing.”.
Before filing a motion with the court, the inmate must have “exhausted all administrative remedies” within the BOP institution. The administrative remedies require a petition to the prison warden followed by a lapse of 30 days and appellate protocol if the petition is denied.
Once administrative remedies are exhausted, the motion must is filed in the sentencing district court and is usually heard by the sentencing judge.
What are Requirements for Filing a Motion for Compassionate Release?
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?”?
An inmate’s motion must satisfy both the BOP and the United States Sentencing Commission’s standards for “Extraordinary and Compelling Reasons” in the context of compassionate release which include:
Defendant’s medical condition
Defendant’s age (in light of the percentage of sentence served)
Defendant’s family circumstances
Nature and circumstances of the offense
Unresolved detainers and warrants
Length of sentence and amount of time served
Inmate’s current age and age at sentencing
Inmate’s release plans (employment, medical, financial)
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?
The 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 pretrial release
What is a Winning Motion for Compassionate Release?
The motion for Compassionate Release must provide a release plan that includes where the defendant will live upon release, as well as his/her source of income and support, and any other factors to demonstrate stability. It must also clearly include conditions such as curfew, location monitoring, or home detention to address the court’s concerns regarding risk of danger and community safety.
What Plan & Conditions of Supervised Release Justify Early Release?
Once the court grants a motion for compassionate release, the defendant’s term of imprisonment ends and is deemed “time served.”
What Happens After the Motion for Compassionate Release is Granted?
For more information about eligibility for compassionate release in light of the corona virus pandemic
COVID-19 FIRST STEP ACT
Under the 2018 First Step Act, the BOP can transfer certain low risk, elderly or terminally ill inmates from institutions to home confinement. The CARES Act passed by Congress on March 27, 2020 expands the BOP’s authority to maximize the period of time an inmate can typically serve on home confinement.
Unlike Compassionate Release, release to home confinement under the 2018 First Step Act does not require exhaustion of administrative remedies within the BOP and inmates can file a motion seeking release to home confinement without any administrative steps. It also does not commute the inmate’s sentence to time served. Instead, it results in the inmate’s early release from a BOP prison to home confinement.
What's the Difference Between Compassionate Release & Early Release to Home Confinement?
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 months of their term of commitment and
Elderly Offenders and Terminally Ill Offenders
Elderly Offenders must be at least 60 years old and have served at least 2/3 of their term of commitment.
Terminally Ill Offenders must be in need of a nursing home, intermediate care or assisted living OR be diagnosed with a terminal illness.
Who Qualifies for Home Confinement Under the First Step Act?
In response to the COVID-19 pandemic and the CARES Act, the BOP has been directed to swiftly transfer eligible inmates to home confinement. In addition to the BOP’s authority under the law and First Step Act, the following criteria determine eligibility :
The age and vulnerability of the inmate to the virus
Security level of the facility where the inmate is housed
Inmate’s prison behavioral scores
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)
What is the Impact of COVID-19 on Eligibility for Home Confinement?
The inmate is a low risk offender
The crime of conviction is non-violent and is not a sex crime or terrorism
The infection rate and conditions at the facility where the inmate is housed
The inmate’s age
The inmate’s health conditions and susceptibility to the virus
The percentage of the term of commitment the inmate has served
What Factors Does the Court Consider for Release to Home Confinement in Response to COVID-19?
For more information about eligibility for compassionate release