On Friday, March 26, 2020, the President signed the “Coronavirus Aid, Relief, and Economic Security Act” or CARES Act into law.  The CARES Act does many things related to economic stimulus.  The CARES Act also authorizes the Attorney General to take several actions regarding the prevention of COVID-19 in the Federal Prison system, as well as granting the authority to the Attorney General to take other decisive action regarding the placement of prisoners into home confinement.  We will cover the act itself, Attorney General Barr’s response and what that means for federal prisoners. 

THE CARES ACT AS IT RELATES TO FEDERAL PRISONERS

Section 12003 of the CARES Act states that

“The Secretary [of Health and Human Services] shall appropriately consider, relative to other priorities of the Department of Health and Human Services for high-risk and high-need populations, the distribution of infectious disease personal protective equipment and COVID–19 test kits to the Bureau for use by inmates and personnel of the Bureau. “

CARES ACT, SECTION 12003

Section 12003 goes on to say the following:

(2) HOME CONFINEMENT AUTHORITY.—During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.

CARES ACT, Section 12003

(the “covered emergency period” means the date on which the President declared a national emergency for COVID-19 up until 30 days after the national emergency declaration terminates (March 13 according to this White House Declaration)

So in other words, the BOP now has the ability to give more than 6 months or 10 percent of an inmate’s sentence in home confinement. 

Section 12003 goes on to say the following:

(c) VIDEO VISITATION.— (1) IN GENERAL.—During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau shall promulgate rules regarding the ability of inmates to conduct visitation through video teleconferencing and telephonically, free of charge to inmates, during the covered emergency period.

CARES ACT, SECTION 12003

MORE MONEY TO RESPOND TO CORONAVIRUS

The CARES Act goes on to authorize “$100,000,000, to prevent, prepare for, and respond to coronavirus, domestically or internationally, including the impact of coronavirus on the work of the Department of Justice[.]”

VIDEO CONFERENCING FOR HEARINGS

The CARES Act also makes provisions for several types of hearings to proceed via video conference.  Those things are:

(A) Detention hearings under section 3142 of title 18, United States Code.

(B) Initial appearances under Rule 5 of the Federal Rules of Criminal Procedure.

(C) Preliminary hearings under Rule 5.1 of the Federal Rules of Criminal Procedure.

(D) Waivers of indictment under Rule 7(b) of the Federal Rules of Criminal Procedure.

(E) Arraignments under Rule 10 of the Federal Rules of Criminal Procedure.

(F) Probation and supervised release revocation proceedings under Rule 32.1 of the Federal Rules of Criminal Procedure.

(G) Pretrial release revocation proceedings under section 3148 of title 18, United States Code.

(H) Appearances under Rule 40 of the Federal Rules of Criminal Procedure.

(I) Misdemeanor pleas and sentencings as described in Rule 43(b)(2) of the Federal Rules of Criminal Procedure.

(J) Proceedings under chapter 403 of title 18, United States Code (commonly known as the ‘‘Federal Juvenile Delinquency Act’’), except for contested transfer hearings and juvenile delinquency adjudication or trial proceedings.

The CARES Act also authorizes the use of videoconferencing for felony pleas under certain circumstances as well. 

ATTORNEY GENERAL BARR’S RESPONSE TO THE CARES ACT

On March 26, 2020, in a memorandum to the Director of the Bureau of Prisons, Attorney General Barr gave guidance regarding how the CARES Act should be carried out:

Attorney general Barr indicated that the Bureau of Prisons is to consider the totality of circumstances for each individual inmate, the statutory requirements for home confinement and the following non-exhaustive list of discretionary factors:

  • The age and vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;
  • The security level of the facility currently holding the inmate, with priority given to inmates residing in law and minimum-security facilities;
  • The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment under this Memorandum;
  • The inmate’s score under PATTERN, with inmates who have anything above a minimum score not receiving priority treatment under this Memorandum;
  • Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;  
  • The inmate’s crime of conviction and assessment of the danger posed by the inmate to the community.  Some offenses, such as sex offenses, will render an inmate ineligible for home detention.  Other serious offenses should weigh more heavily against consideration for home detention. 

The Memorandum goes on to state that the BOP medical director or his designee shall make an:

“assessment of the inmate’s risk factors for severe COVID-19 illness, risks of COVID-19 at the inmate’s prison facility, as well as the risks of COVID-19 at the location in which the inmate seeks home confinement.  We should not grant home confinement to inmates when doing so is likely to increase their risk of contracting COVID-19.  You should grant home confinement only when BOP as determined—based on the totality of the circumstances for each individual inmate—that transfer to home confinement is likely not to increase the inmate’s risk of contracting COVID-19.”

Barr memorandum

Lastly, the memo indicates that ANY INMATE must be placed in a mandatory 14-day quarantine period before that inmate is discharged from a BOP facility to home confinement. This portion is NOT only for inmates released under this prioritized process, but any inmate that is granted home confinement. 

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The BOP memo appears to greatly reduce the number of people who are eligible for more home confinement under the prioritized process explained in the CARES Act.  To be clear, none of that was in the original text passed by congress and authorized by the President.  According to this memorandum the most qualified candidates are likely to be older individuals, individuals with “co-morbidities” such as preexisting heart and lung conditions, individuals in low or medium prisons with a minimum risk of recidivism under PATTERN with good conduct free of violent or gang-related activity.  If you believe that you meet this definition then I urge you to reach out to your case managers and ask for immediate home confinement placement pursuant to the CARES Act.   

If you do not believe that you meet this or you have been denied home confinement for any reason and you believe that you have extraordinary and compelling circumstances including anything that could make you more vulnerable to COVID-19 then I recommend that you seek a reduction in sentence under 18 USC 3582(c)(1)(A), the “Compassionate Release” guidelines.  As we have stated before, you start this by writing a letter to the warden of the Prison.  A motion for relief under 3582 is ultimately up to your district judge as opposed to the BOP.  If you have further questions on this then please reach out to our office. 

CAN I FILE A COMPASSIONATE RELEASE BASED ON COVID-19?

The short answer is yes. You can request a compassionate release/reduction in sentence based on anything that is “extraordinary and compelling.” I am not going to say whether you should or should not seek relief, but I will offer some opinion on the matter.

For those that are considered in the “at-risk” category as described above, I believe making such a request would be appropriate. However, there are some caveats.

First, it should be understood that nothing moves quickly in the federal system. Seeking compassionate release takes time, and there is a possibility that the crisis could subside before a final decision is rendered. For example, a compassionate release request submitted to the institution is given 30 days for a response. If no response is received within 30 days, then the individual may seek 18 U.S.C. 3582(c)(1)(A) relief in the district court. As you all very well know, district courts are not exactly known for their quick turnaround time.

Additionally, if the BOP denies a request for compassionate release within that 30-day window, then the individual must complete their administrative remedy process before the district court has jurisdiction. That process alone can take several months to complete.

I am not telling anyone this to dissuade them from seeking compassionate release. Rather, I am simply relaying facts that any individual should consider in this situation. Every person’s case is going to be different. If you want to discuss the specifics of your case with me, and whether you should seek relief in light of these recent developments, please e-mail me at [email protected] to do so.

CAN I FILE AN EMERGENCY MOTION WITH THE COURT?

This is a question I have received several times. As discussed in the example above, the district court does not have jurisdiction under 18 U.S.C. 3582(c)(1)(A) unless the request for compassionate release/reduction in sentence is initiated in the institution first. Filing a motion without first submitting a request to the BOP under section 3582(c)(1)(A) will more than likely result in dismissal without prejudice.

That being said, there may be instances where completing one’s administrative remedies would be an exercise in futility. Under such circumstances, it may be possible to bypass the administrative remedy process. However, this should be determined on a case-by-case basis. Again, if you would like to discuss this with me, please e-mail me at [email protected].

HOW IS MY PENDING CASE BEING AFFECTED?

As I’m sure you’ve all heard from friends and loved ones, many counties across the country have implemented emergency measures to help slow the spread of the virus. This includes the closure of all non-essential businesses and, in many cases, a shut-in mandate preventing people from leaving their homes (with a few exceptions). This has led to several federal courts suspending in-person appearances in the form of jury trials, evidentiary hearings, and oral arguments (arrests and arraignments are still occurring as normal). Some of these hearings will be handled electronically as stated above.

However, because most courts now utilize electronic filing, STATUTE OF LIMITATIONS DEADLINES ARE STILL IN EFFECT. If you have a statute of limitations deadline coming up for your appeal, petition for writ of certiorari, 2255, etc., this deadline is unlikely to change. Similarly, if the court has issued a deadline for your reply brief (or the government’s reply), this date is also unlikely to change, unless a request for an extension is granted. Again, every district varies, so it is important to contact your attorney and determine the status of your case.