Introduction

In the midst of the COVID-19 pandemic, the prison population stands out as one of the most vulnerable groups. According to the Federal Bureau of Prisons (BOP), there are approximately 174,837 inmates currently in federal custody,[1] and other sources estimate a total of 2.3 million individuals are in custody in America's jails, prisons, and detention facilities as a whole.[2]

The heightened risk of the spread of infectious diseases in prisons is well-documented,[3] and cases of COVID-19 have already been reported in a number of both federal and state prisons.[4] The number of infected prisoners grows daily.

As jurisdictions have confronted the pandemic at varying speeds, there are a number of avenues practitioners should consider to ensure their clients' safety. While these steps will vary depending on the stage of the client's case and particular facts, we set forth below several important avenues in the federal system for practitioners to consider in helping their clients confront the "unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic."[5]

Pre-Trial Release

Courts throughout the country have been forced to re-think the circumstances under which an individual should be detained without bail. Massachusetts recently determined that individuals not charged with certain "excluded offenses" are "entitled to a rebuttal presumption of release on personal recognizance."[6] While the federal courts have not adopted such a rule, practitioners should heed three important considerations in seeking to avoid (or revisit) pre-trial detention.

First, an individual's due process rights under the Fifth Amendment can be implicated where they are subjected to "conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness."[7] This reasoning stems from a line of cases that make clear that an individual cannot be "punished" prior to being afforded due process. In light of the critical rights it implicates, court must evaluate pre-trial detention on a case-by-cases basis with consideration given to the "total harm and benefits to prisoner and society."[8]

Second, the federal bail statutes do not give judges blanket discretion in setting bail. Rather, 18 U.S.C. § 3142(g) includes broad factors including the nature of the offense, the weight of the evidence, the history and characteristics of the defendant, and the danger the defendant would pose to others if released. An ongoing pandemic does not fit neatly into any of these categories. But, judges are permitted to consider the physical and mental condition of the defendant.[9] Thus, a defendant that is particularly at risk for complications from COVID-19 infection can ask that a judge consider that factor when making a determination on bail.[10] It is unlikely that an individual that falls outside an "at risk" group can rely on this provision. To date, federal courts have been less inclined to provide relief to otherwise healthy individuals in other contexts, as described below. In an April 6, 2020 memorandum, United States Attorney General William Barr likewise directed prosecutors to "consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic" when litigating pre-trial detention issues.[11] While the Attorney General referred prosecutors to current Center for Disease Control (CDC) guidelines, who is "at risk" appears to be evolving as more is learned about COVID-19. For example, research has suggested that individuals with certain genetic variations could be more at risk for complications due to COVID-19.[12] Could one's genes ultimately become a determinative factor at a detention hearing? Practitioners should keep close watch on these developments.

Third, 18 U.S.C. § 3142(i) provides an additional avenue for individuals who have already been ordered detained. This provision permits "temporary release" to an "appropriate person" if the defendant can establish it "necessary for preparation of the person's defense or for another compelling reason."[13] In United States v. Stephens, Judge Nathan of the Southern District of New York did not reach whether the pandemic itself amounted to a compelling reason but acknowledged that the First Circuit had found that "extraordinary circumstances" related to medical conditions may necessitate temporary release under § 3142(i)).[14] Rather, Judge Nathan determined that the current conditions in the BOP—in particular, the suspension of legal visits to curb the spread of COVID-19—would adversely affect Stephens's ability to prepare his defense.

In the little time that has passed since the Stephens decision, conditions in federal prisons have only worsened. Notably, the BOP has implemented "phase 5" of its COVID-19 response plan, which largely locks down prisoners in their cells for at least fourteen days—further hampering a pre-trial detainee's ability to prepare his or her defense.[15] As circumstances evolve, practitioners seeking relief under this provision should be prepared to provide the court with as much detail as possible on the facility where their client will be detained—including the extent to which the outbreak has impacted the facility and the extent to which the facility permits access (in-person and virtual) to the client. A recent lawsuit brought by the Federal Defenders of New York identified critical shortcomings in their ability to access their clients—either by telephone or video—in two federal facilities in New York. The Defenders allege that during the last eight days of March 2020, only two videoconferences occurred and only 18 of 59 clients could be reached via phone.[16] These datapoints offer important support for anyone seeking relief under § 3142(i).[17] In addition, the Attorney General's April 6 memo to prosecutors directed that they consider whether an individual seeking release after a detention order is at risk for serious infection.

Bail Pending Sentencing 

There have been fewer published requests for bail pending sentencing. Defendants' burden under the Bail Reform Act depends on their offenses.[18] Most defendants will be detained "unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community."[19] This first requirement seems largely unaffected: only a few courts have thus far considered whether shelter-in-place and travel restrictions make a defendant less "likely to flee or pose a danger" to the community.[20]

Defendants convicted of crimes of violence, high-level drug offenses, and certain other serious crimes must meet a second requirement: to show "a substantial likelihood that a motion for acquittal or new trial will be granted," absent a government recommendation of no jail time.[21] If defendants cannot meet this second requirement, they may nonetheless be released under the "safety valve" if there are "exceptional reasons" why detention would not be appropriate.[22] These circumstances exist where a "unique combination of circumstances giv[es] rise to situations that are out of the ordinary."[23]

To date, successful requests for bail pending sentencing that rely on COVID-19 have largely emphasized health concerns. But these decisions have varied widely. In one case, a diabetic paraplegic with a catheter was denied bail.[24] In other cases, asthma was sufficient.[25] Overall, the question requires a case-by-case inquiry.[26]

Advocates should be sure to focus their arguments on the specific detention facility involved, rather than national Bureau of Prisons guidance.[27] They should also emphasize the prevalence of asymptomatic carriers to rebut recurring arguments from prosecutors discussing the BOP's performance of temperature checks and quarantines for coughing inmates.[28] They must also be prepared to address arguments that defendants' risks of exposure are the same in or outside prison walls—despite the obvious consequences if even a single person is infected.[29]

Finally, a recent revocation of bail pending sentencing in the Southern District of New York provides a cautionary tale for individuals relying on COVID-19 for release.[30] There, the court released the defendant—who had been detained since his arrest—pending sentencing because he was part of an at-risk population. Upon his release, the defendant allegedly attended a party with known gang members (in violation of the terms of his release) and did not observe social distancing. While pre-trial services sought remand, the government, the defense, and the court agreed that remand was not an option given the risk the defendant would pose to the prison itself having failed to observe social distancing rules. As the court observed, the defendant was granted release and promptly put himself "at least as great a risk, if not greater, [for] exposure to COVID-19 than he would face [in prison]. There, BOP officials are at least conscientiously trying . . .to arrest the spread of the disease. The same cannot be said for McKenzie." As such, the court added additional restrictions to the defendant's release conditions and informed the parties it would consider an upward departure from the Sentencing Guidelines.

Bail Pending Appeal

As with bail pending sentencing, the standard for bail pending appeal turns on the type of offense. All defendants must be detained unless a judge concludes "by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community[.]"[31] Most defendants must then demonstrate that the appeal "is not for the purpose of delay and raises a substantial question of law or fact[.]"[32] Certain defendants, including violent offenders and those convicted of serious drug offenses, will be ineligible for release unless they can show "exceptional reasons" and thus qualify for the safety valve.[33]

Unlike bail pending sentencing, however, all defendants—of whatever classification—must meet the substantial question requirement. This requirement has allowed judges to sidestep consideration of the pandemic.[34] Cases discussing whether health conditions constitute "exceptional reasons" for bail pending appeal have varied, depending on defendants' age and health. A certainty of infection is not required.[35] Asthma, again, may be significant.[36]

Postpone Surrender Date

For individuals not in custody facing an impending prison sentence, practitioners should seek a self-surrender date (i.e., the date where an individual must report to the BOP) as far out as possible. We have seen postponements of several months accepted by courts.[37] While support from prosecutors for these later report dates seem to vary from case to case, these delays are actually becoming a necessity for their colleagues at the BOP, given the current strain on resources. Indeed, in a letter dated March 26, 2020 in support of extending a voluntary surrender date, BOP Assistant General Counsel Robert A. Martinez wrote that while prisons are quarantining some inmates for 14 days before the start of their sentence, minimum security camps are not set up to enforce such a quarantine and "[u]nfortunately, many local jails are refusing to admit such inmates at this time."[38] Since then, BOP implemented "Phase 5" of its COVID-19 Action Plan, which notes that it was working with the US Marshals to "significantly decrease incoming movement" for the duration of the phase. Practitioners litigating this issue should, again, tailor arguments to the particular detention facility as much as possible. If that facility does not have the capability to effectively quarantine—both incoming detainees and those with COVID-19 symptoms—the practitioner has a compelling argument to delay the surrender date.

This delay helps to improve safety as the BOP responds to this unprecedented crisis. It also affords the practitioner the opportunity to seek additional relief should circumstances permit (e.g. changes in the client's health or legal developments that afford the client alternatives to incarceration that were previously unavailable).

Compassionate Release and Sentence Modification

For those in custody—particularly those who fall into the risk categories set forth by the CDC for COVID-19—practitioners should consider moving for a sentence modification. Under 13 U.S.C. § 3582(c), a defendant may initiate a request for what is colloquially referred to as "compassionate release" upon motion to the sentencing judge, after administrative remedies are exhausted. These administrative requirements include a failure of the BOP to bring a motion for modification on defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility (whichever is earlier). 18 U.S.C. § 3582(c)(1)(A). Importantly, the court may modify a term of imprisonment if it finds that "extraordinary and compelling reasons warrant such a reduction and the reduction is consistent with 'applicable policy statements'[39] from the US Sentencing Commission."[40]

Since the COVID-19 pandemic, federal courts have seen a significant influx of motions for compassionate release. To date, courts have required more than generalized concerns of infection for granting relief. At least one court has stated that "[g]eneral concerns about possible exposure to COVID-19 do not meet the criteria for extraordinary and compelling reasons for a reduction in sentence set forth in [this] policy statement."[41] However, courts have been considerably more likely to grant a modification when COVID-19 concerns are paired with additional justifications for release.

For example, in a recent decision in the Southern District of New York, Judge Schofield granted a defendant's application under 3582 to modify his sentence after he had exhausted his administrative rights through BOP first, and where he had a compromised immune system. The government did not oppose his application.[42] In another recent decision from that district, while an inmate's request for modification to time served was denied without prejudice, his alternative request for a recommendation that the BOP allow him to serve the rest of his sentence in a halfway house and home confinement instead of New York's Metropolitan Correctional Center was granted. Judge Engelmayer cited the "heightened health risk" and explained that "at the time of sentencing, the Court did not know, and could not have known, that at least a substantial portion of [defendant's] final seven months of imprisonment would be served at a time of worldwide pandemic, which is directly impacting the facility at which [defendant] is incarcerated."[43] Recently, Judge Preska granted compassionate release citing the defendant's "extraordinary rehabilitation, together with his remorse and contrition."[44] While the court did not specifically mention the pandemic, the decision came on the heels of two supplemental applications from the defense citing growing concerns about the pandemic. Similarly, in a decision out of the Eastern District of New York yesterday that granted defendant's 3582 motion, Judge Matsumoto stated "[t]he court cannot glean what ends of justice may be served by keeping Mr. Hansen incarcerated," acknowledging in addition to Mr. Hansen’s medical issues "the unique risks posed by the COVID-19 pandemic to prisoners like Mr. Hansen, who is elderly and infirm."[45]

Practitioners should be guided by the "pandemic plus" formulation that courts appear to be following. Applications for compassionate release should make a record of the most recent public health developments plus identify any health risk factors, family circumstances, and/or evidence of rehabilitation that could distinguish the individual. Practitioners should also be sure to confer with the government which, at times, has not opposed these motions. As Southern District of New York Chief Judge McMahon recently concluded, "[r]eleasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19."[46]

Finally, it bears noting that some practitioners have attempted to bypass the exhaustion requirement by simultaneously making requests to the BOP and filing the motion to modify, or making such motions before the 30 days have passed and citing the time-sensitive nature of the situation.[47] In two recent decisions out of the Southern District of California and Middle District of Florida, the court denied emergency motions under 3582, on exhaustion grounds.[48] But an even more recent decision out of the Southern District of New York determined that exhaustion "can be waived in light of the extraordinary threat posed . . . by the COVID-19 pandemic" to the defendant who had serious medical issues.[49] While the weight of authority appears to lean toward exhausting administrative remedies, the issue is clearly not entirely settled.[50]

Home Confinement Under the CARES Act

While courts have recommended home confinement on motions for compassionate release, another avenue for an individual to serve the remainder of his or her sentence at home has emerged through the recently passed CARES Act. Previously, the BOP was afforded the discretion to release individuals who served 90% of their sentence to home confinement to assist the individual with re-entry into the community.[51] The CARES Act empowered the Attorney General to remove the 90% threshold should he find that the circumstances require it. On April 3, Attorney General Barr made such a finding and directed the BOP to expand their efforts of releasing individuals to home confinement.[52] Barr had previously directed the BOP to consider a number of non-exhaustive discretionary factors for home confinement, including: age and vulnerability; security level of the facility where inmate is located (priority given to low and minimum-security facilities); the inmate’s conduct in prison; any verifiable, demonstrated re-entry plan by the inmate; and an assessment of any danger posed by the inmate to the community.[53]

According to the BOP, "[i]nmates do not need to apply to be considered for home confinement. Case management staff are urgently reviewing all inmates to determine which ones meet the criteria…."[54] Further, the BOP has "increased Home Confinement by over 40% since March and [are] continuing to aggressively screen all potential inmates for Home Confinement"[55] However, practitioners should continue to monitor the Attorney General's directives, and evaluate whether to request judicial recommendation.

Conclusion

Courts have begun to question whether current law provides a humane framework, given the current crisis. Judge Furman recently denied a 67-year-old asthmatic’s motion for release from the Manhattan Detention Center (MDC).[56] Judge Furman recognized that the MDC already had a confirmed case of COVID-19 and had not isolated its at-risk population, placing the defendant in "grave danger." He denied bail only because he concluded he had no authority to grant it.[57] He called for legislative action: "Only the political branches can do what this moment requires. The question is whether they will do so—and, if they do, whether their actions will be too late for Dr. Nkanga and other inmates like him."[58]

There is no question that the protection of prisoners is paramount given the increasing dangers the population faces due to the COVID-19 pandemic. Under the Eighth Amendment to the US Constitution, ignoring serious medical needs violates the "cruel and unusual punishment" prohibition. While defense attorneys will continue to monitor the situation and urge the BOP's attention and swift response to the dangers of this pandemic, they can also assess whether any of the remedies above may be appropriate for the safety of their clients.