The current novel coronavirus (COVID-19) is causing a crisis beyond that which most of us have known in living memory, and the impacts are affecting populations on a global basis. Some people face a higher likelihood of severe harm from the virus, including those with underlying medical conditions such as diabetes, heart disease, or lung disease.
These conditions do not discriminate: a number of prisoners in federal prisons also suffer from medical issues and are facing undue risks of infection by COVID-19. Prisoners are facing serious hardship when they are contained in prisons affected by coronavirus outbreaks, as they have no way of easily isolating themselves or avoiding infection.
Instead, prisons are becoming breeding grounds for infection, and many minor offenders are looking to apply for release as a result of the pandemic, under the grounds of “compassionate release.” As a result, many courts are already beginning to order the release of prisoners at high risk of infection.
What is Compassionate Release?
Compassionate release is covered in Title 28 of the Code of Federal Regulations (CFR). It sets out under §571.60 that if “particularly extraordinary or compelling circumstances” have arisen, the court:
“… may make an inmate with a minimum term sentence immediately eligible for parole by reducing the minimum term of the sentence to time served,” or “may reduce the term of imprisonment of an inmate sentenced under the Comprehensive Crime Control Act of 1984.”
The primary condition is that there must be “extraordinary and compelling reasons [that] warrant such a reduction.” In addition, the court must find that the reduction would be consistent with Sentencing Commission policy statements, and that applicable sentencing factors warrant a reduction 1.
The primary issue will be whether the pandemic is considered to be an “extraordinary and compelling reason” for release, as well as the particular factors of the inmate’s sentence. This could include:
· How much time has already been served;
· How long the initial sentence was;
· What crimes were committed;
· Whether any violence was involved; and
· Rehabilitation that the inmate has undertaken during the course of their sentence2.
What are Extraordinary and Compelling Reasons?
The Sentencing Commission has defined extraordinary and compelling reasons as:
· If the defendant is suffering from a terminal illness;
· If the defendant is suffering from a permanent physical or medical condition that “substantially diminishes the ability of the defendant to provide self-care”;
· If the “only family member capable of caring for the defendant’s minor child or minor children” dies or becomes incapacitated; or
· there exists … “an extraordinary and compelling reason other than, or in combination with, the reasons described” above.
United States v Jeremy Rodriguez 3 found that this “catch all” provision can apply in the current circumstances of the COVID-19 pandemic. This is partially because “detention facilities have even greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care,” which make them places in which it is difficult to “effectively prevent the spread of COVID-19.”
When this risk of infection is combined with other considerations such as whether the inmate has an underlying health condition, if they have served most of their sentence, and if they have been an exemplary inmate, compassionate release is likely. In addition, the court will need to be satisfied that the inmate “is not a danger to the safety of any other person or to the community.”4
In addition, United States of America v. Teresa Ann Gonzalez5 found that the court can make “determinations on a case-by-case basis and to reduce fundamentally unfair sentences where such reasons exist.” This means that for many prisoners, compassionate release will be a potential option: one that should be pursued as soon as possible.
How Can an Inmate Apply?
Under §571.61 of Title 28 CFR, a request can initially be submitted to the warden, in writing, by the inmate. The written request must include:
1. The extraordinary or compelling circumstances; and
2. Information on where the inmate will live after release, how they will support themselves, and (if the request involves health reasons), where the inmate will receive medical treatment and how they will pay for it.
The Urgency for Compassionate Release
Applications for compassionate release should be made with great urgency, as the spread of the disease is only going to get worse. Prisons can quickly become hotbeds for COVID-19 infection, and many model prisoners are at risk of having their incarceration becoming a death sentence.
1-3, United States v Jeremy Rodriguez (Penn. U.S.D.C, 2020, No. 2:03-cr-00271-AB-1)
4, (Penn. U.S.D.C, 2020, No. 2:03-cr-00271-AB-1)
5, (U.S.D.C Washington No. 2:18-CR-00232-TOR-15)