The Coronavirus Aid, Relief, and Economic Security Act, or CARES Act was signed into law in March 2020 by President Trump. As part of the CARES Act the Bureau of Prisons can grant an inmate more time in home confinement than the six months or the 10 percent of their sentence (whichever is less) that is provided for by federal law.
The CARES ACT
Barr’s First Memorandum
In a memorandum to the Bureau of Prisons, Attorney General Barr indicated that the following factors would be used to determine which federal inmates would receive priority consideration regarding home confinement:
- 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.
Barr’s Subsequent Memorandums
In a memorandum on April 3rd, Attorney General Barr indicated that the BOP should take immediate action to “begin implementing this directive immediately at [FCIs Danbury, Elkton and Oakdale] and any other [facility] facing similarly serious problems” while at the same time protecting police officers and the public.
A memo from the Bureau of Prisons Website dated April 5 indicates that “[w]hile all inmates are being reviewed for suitability, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager.”
A memorandum from the Bureau of Prisons dated April 22 indicates that when considering a person’s eligibility for release under the CARES Act, the Bureau of Prisons should consider the following factors:
1) reviewing the inmate’s institutional discipline history for the last twelve months;
2) ensuring the inmate has a verifiable release plan;
3) verifying the inmate’s primary or prior offense history does not include violence, a sex offense, or terrorism related;
4) confirming the inmate does not have a current detainer;
5) reviewing the security level of the facility currently housing the inmate, with priority given to inmates residing in Low and Minimum security facilities;
6) reviewing the inmate’s score under PATTERN, with inmates who have anything above a minimum score not receiving priority treatment;
7) and reviewing the age and vulnerability of the inmate to COVID-19, in accordance with the CDC guidelines.
The BOP also indicated that they would consider the length of time an inmate has spent in federal prison on their sentence, giving priority consideration to individuals who:
1) have served 50% or more of their sentences,
2) or have 18 months or less remaining on their sentences and have served 25% or more of their sentences
Individuals who meet those criteria should reach out to receive home confinement as soon as possible. The Bureau of Prisons federal website has indications of how many members of the prison population have gotten sick with COVID-19.
Our office can help seek this for your loved one. We do this by having a legal call with your loved one and getting their information as well as how they qualify for relief under CARES. We would then reach out to the Bureau of Prisons and ask them to consider your loved one for immediate home confinement.
A person not meeting those conditions can seek a reduction in sentence under 18 USC 3582(c)(1)(A), the compassionate release statute. As you know, the FIRST STEP ACT allows an inmate to file for relief if there are “extraordinary and compelling circumstances” to warrant such a reduction. Several courts have determined that the lack of updated policy from the sentencing commission gives them the ability to determine what “extraordinary and compelling circumstances” means. In the past the courts have determined that lack of medical care and the change of certain laws have constituted extraordinary and compelling circumstances.
Some of those courts have determined that they have the ability to reduce the sentence of a person who has “extraordinary and compelling circumstances,” is not a danger to others and who release is warranted to upon analysis of the “3553 Factors.” Several courts have determined that COVID-19 could be an extraordinary or compelling circumstance, even in situations with inmates who have already tested positive for COVID-19. This has been because of a lack of social distancing and the high amount of elderly inmates inside. However, it is important to note that compassionate release is extraordinary relief and the courts do not take it lightly, even in the middle of a public health crisis.
How does The Law Office of Jeremy Gordon seek compassionate release?
If retained I would have a legal call with your loved one and we would go over the extraordinary and compelling circumstances. We have a legal call with the client so that we can hear from the inmate what their needs are and what we can do for them. We have the legal call with the client because in many situations, the client has not had a chance to present their side of the story sufficiently to their lawyer. We would also go over how the 3553 factors impact your loved one and we would discuss how your loved one is no longer a danger to others. We would then get documentation that proves those things including letters of support from family and friends, your team sheets and other such things. We would then reach out to the warden to start the 30-day “clock” and then file with the court for early release after that.
The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to reach out to us today to visit with us on how we might be able to help you or your loved one get the representation they deserve. For more information on appeals please click here. If you can also add us on Facebook or Twitter.
The Potential of COVID-19 Reinfection in Federal Prisons and the Need for More Compassionate Release
Evidence about COVID-19 reinfection is starting to appear. Find out more about what this means for federal inmates here.
In Kirschner, the District of Indiana granted 3582 compassionate release relief to a person due to coronavirus concerns.
The administrative remedy process has become newly relevant in the context of compassionate release cases related to COVID-19. If you are thinking about seeking compassionate release, especially release based on COVID-19 dangers, the administrative remedy process is vital to understand.
In United States vs. Alam, the 6th Circuit upheld a dismissal of a compassionate release case for failure to wait 30 days.
In United States vs. Fischman, 4:16-cr-00246-HSG, the Northern District of California determined a way that an inmate can receive 3582 relief even when they are COVID-19 positive