Compassionate Release: The COVID-19 Crisis May Open Prison Doors for the Medically Vulnerable

As of mid-day on Monday, March 30, 2020, the COVID-19 virus had infected more than 759,800 people worldwide, leading to at least 36,674 deaths. In the United States, more than 156,000 people have been infected, leading to at least 2,897 deaths. The virus is terrifying even if for people living comfortably.

But many Maryland residents have family and friends living in much more precarious locations. Some have family and friends whose past mistakes have left them facing the threat of the virus while confined in the extraordinarily dangerous environment of a federal or state prison.

A Unique Challenge

The Centers for Disease Control and Prevention has recognized that prison facilities pose unique challenges.

Incarcerated persons live, work, eat, study, and recreate in crowded spaces. There are many opportunities for COVID-19 to be introduced into a prison – by correctional staff, by transferred prisons, by prisoners coming back from court or outside medical visits, or even through visits from family, legal representatives, clergy, and other community members.

Persons incarcerated in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas. Options for medical isolation of COVID-19 cases are limited or unavailable. Prisoners and staff may have medical conditions that increase their risk of severe disease from COVID 19.

“Social distancing” is virtually impossible, and exercising disease prevention measures such as frequent handwashing may be limited and is determined by the supplies provided in the facility and by security considerations. To cite just one example, prisoners have no access to Purell hand sanitizer, which contains alcohol and is considered contraband.

In addition to the CDC’s findings, more than 200 doctors, nurses, and public health experts from Johns Hopkins University have written to Governor Hogan expressing “urgent concern about the spread of COVID-19 in Maryland’s prisons, jails, and juvenile detention centers.”

Beyond these issues that apply to almost all prisoners, the CDC has recognized that older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. High-risk conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, compromised immune systems, severe obesity, diabetes, renal failure, and liver disease. Under ordinary circumstances, while prison medical care may not match the standards of the Johns Hopkins or MedStar systems, prisoners who are afflicted with these medical problems usually survive the challenging circumstances in which they live. COVID 19 dramatically reduces their odds of survival.

So what can prisoners or their family members do if they fall into one of the vulnerable categories identified by the CDC?

Federal Prisoners

Let’s begin with federal prisoners. Under the First Step Act (FSA) enacted in 2018, Congress amended the compassionate release statute, section 3582 of the federal criminal code, to expand the grounds for which a sentence can be reduced for “extraordinary and compelling” circumstances.

An inmate must first set forth the grounds for compassionate release in a petition to the warden of his or her institution. If the Bureau of Prisons (BOP) approves the request, the government will file a motion with the sentencing court for a reduction in sentence. Prior to 2018, if BOP said no, that was the end of the line. The FSA changed that. If BOP rejects a prisoner’s petition, or if 30 days have passed without a decision, federal judges are now empowered to consider a defendant’s motion, even if the government objects, and to reduce a sentence where a reduction is warranted by “extraordinary and compelling reasons” and is consistent with the sentencing factors set forth in section 3553 of the criminal code.

Motions for compassionate release based on the mortal threat to elderly and medically compromised prisoners from COVID-19 are now beginning to percolate up through the federal system. Many more will follow after requests finish working their way through the BOP system. Some of the most recently filed motions raise the question of whether, in emergency circumstances, judges can act before the 30-day administrative review period has been completed. Moreover, the internal request within BOP may no longer be quite the lost cause it was in the past.

The Department of Justice now seems to recognize that it has a dire situation on its hands as the virus approaches and reaches BOP facilities. On March 26, 2020, Attorney General William Barr issued a directive to BOP to consider releasing prisoners to home detention under appropriate circumstances. The Attorney General’s memorandum highlighted as prime candidates for release to home confinement “at risk inmates who are non violent and pose minimal likelihood of recidivism and who might be safer serving their sentencings in home confinement rather than BOP facilities.”

Simply put, prisoners with significant medical conditions now get two bites at the apple – from BOP and from the federal court – under circumstances in which early release has become a much more attractive option, not just for prisoners but also for wardens and judges.

Maryland Prisoners

The Maryland state system works differently, with all roads running through the Maryland Parole Commission.

To seek “medical parole,” a state prisoner, his or her attorney, medical professional or family member, a prisoner official or employees, or “any other person” may file an application with the warden based on an array of factors set forth in the state law. One reason for medical parole is when a prisoner is so chronically debilitated by a medical condition that he or she is physically incapable of presenting a danger to society. Another is being “imminently terminal” or being so ill that “continued imprisonment would serve no useful purpose.” The required documentation is extensive, and the process culminates in a recommendation from the warden to the Commissioner of Correction. For prisoners serving life sentences, both the parole commission and the governor must approve early release. The statistics surrounding medical parole are murky at best, as the commission discloses how many requests were processed, but not how many were granted or denied.

In 2016, Maryland law added another grounds for release: “geriatric parole.” This option only applies to prisoners who received mandatory sentences for repeat convictions for crimes of violence – murder, rape, kidnapping, and specific other crimes – and even then it is not available to those who are required to register as sex offenders. Once that hurdle is crossed, the prisoner must be at least 60, have served at least 15 years of his or her sentence, and satisfy criteria that the parole commission will eventually establish in regulations. A July 2019 report from the governor’s “Geriatric Parole Workgroup” made clear that meaningful implementation of the statute is still a ways off, so it is not a viable option in the current crisis.

What About Those Who Are Charged but Not Convicted?

Finally, while this article has focused on prisoners who have already been sentenced and are serving their time in federal and state prisons, many federal and state defendants who have been charged but not convicted are detained in local jails between arrest and trial.

Those individuals remain under the jurisdiction of federal and state courts, which increasingly have responded to the crisis by factoring COVID-19 into their analysis of whether to detain defendants or release them pending trial, and released defendants who under other circumstances might have been detained.

More than 2.2 million people are incarcerated in America’s prisons and jails. Even for those prisoners who committed serious crimes, a term of imprisonment is supposed to be a fair punishment, not a death sentence. Faced with the COVID-19 crisis, medically vulnerable prisoners and their families should explore all options that might result in their transfer from dangerous prison environments.

Stuart Berman served for 28 years with the Department of Justice as a line and supervisory Assistant United States Attorney and as a trial attorney with the Antitrust Division. He has assisted many of the firm’s business clients with presenting fraud cases to federal and state law enforcement authorities, leading to cases where defendants received lengthy prisons sentences and were ordered to repay victims. He can be reached at 301-657-0729 or [email protected].