Criminal Justice Insider

Prisoners who live in closed quarters and confined conditions of a federal penitentiary are particularly vulnerable to COVID-19 infection. Given the limited resources available for testing and the unique conditions of a prison, the United States Bureau of Prisons has had a particularly difficult time containing and controlling infections within its facilities. It is perhaps for this reason there has been a marked increase in the number of motions for compassionate release, and that several high profile inmates, including Dean Skelos and Michael Avenatti, have been transferred from Bureau of Prisons Facilities to home confinement.

Under the First Step Act (18 U.S.C. Sec. 3582(c)(1)), enacted on December 21, 2018, federal district courts could, for the first time, modify a defendant’s sentence based on motion interposed by the defendant themselves. Prior to the enactment of the First Step Act, a motion for early release could only be filed by the Bureau of Prisons. In deciding such an application, the courts were tasked with determining whether “extraordinary and compelling circumstances” warranted a reduction in sentence. Such circumstances include a terminal illness, a serious physical or medical condition, serious functional or cognitive impairment, or, with specific regard to a defendant’s age, that he or she is 65 years of age or older, experiencing a serious deterioration in mental or physical health, and has served 10 years or seventy-five percent of their term of imprisonment.

In light of the COVID-19 pandemic, the Attorney General directed the Bureau of Prisons to consider the possibility of compassionate release to home confinement in order to decrease risks to the health and safety of an inmate. The Attorney General informed the Bureau of Prisons to assess the age and vulnerability of the inmate, the security level of the facility (with priority going to those residing in low and medium security facilities), the inmate’s conduct while incarcerated, their Prisoner Assessment Tool Targeting Estimated Risk and Need (“PATTERN”) Score, whether the inmate has a reentry plan that would maximize public safety including verification that home confinement would present a lower risk of exposure to COVID-19, and the crime of conviction. The Attorney General has specifically directed the Bureau of Prisons to grant release to home confinement only where it is not likely to increase an inmate’s risk of exposure to COVID-19.

While this guidance comes from an executive agency and is not binding on the judiciary, federal district courts have used it as instructive in reaching decisions on motions for compassionate release to home confinement due to COVID-19 risk. Age and pre-existing health conditions are significant risk factors for poor COVID-19 outcomes. Accordingly, the federal district courts have been granting applications for compassionate release to home confinement and releasing elderly and infirm inmates in greater numbers.

The relatively new ability to bring a compassionate release application on behalf of a client and the Attorney General’s new guidance on the issue are an important tool for criminal defense attorneys with older and infirm clients. The Attorney General has made clear that the bar for “extraordinary circumstances” meriting compassionate release to home confinement has been lowered due to the pandemic. As the pandemic drags on, we expect an increasing numbers of these applications to be filed and substantial numbers to be granted.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533