With the COVID-19 pandemic spreading throughout the country, and certainly within our jails in prisons, one of the questions at the top of many minds is whether or not a federal inmate in the BOP can get relief on his sentence under the compassionate release statute and the First Step Act because of the coronavirus. The short answer is yes, maybe, but there are several specific and unique factors to consider in each individual case.
Traditionally and for years, a federal criminal sentence could only be amended in one of two ways. The first way was through Federal Rule of Criminal Procedure 35, which allowed the government to go back into court and make a motion to reduce a defendant’s sentence for things like substantial assistance in the cooperation and the prosecution of others.
The second way was for a compassionate release under 18 USC 3582(c). Until recently, this avenue was largely closed off because the statute gave the Bureau of Prisons (BOP) sole and complete discretion to decide whether a prisoner should be granted compassionate release. That changed in 2018 with the passage of the First Step Act by Congress, which vested authority in federal judges to make this determination, but only under certain circumstances.
The main issue and barrier to a motion for compassionate release being heard in court on its merits and possibly granted is the requirement that the prisoner must exhaust administrative remedies. What some courts interpret that to mean is that the prisoner must ask the BOP to make the request for compassionate release to their sentencing judge on their behalf, and give the BOP a minimum of 30 days to respond to that request. It is only after that request is made, and the BOP fails to act on the prisoner’s behalf, is the prisoner entitled to file a motion before his sentencing judge for compassionate release.
The issue currently facing federal judges throughout the country is whether or not this 30 day time period is jurisdictional. In legal terms, a jurisdictional requirement means that a court cannot waive it under any circumstances. In other words, if the 30-day requirement is jurisdictional, then in every situation the prisoner must make the proper request to the BOP, and wait a minimum of 30 days, otherwise the court would not have jurisdiction to hear that prisoner’s motion for compassionate release. If the 30 days is not jurisdictional however, that means a court can waive it, and under certain circumstances the prisoner can file a motion for compassionate release immediately.
Courts have ruled both ways on this issue. Certainly, most courts have ruled that the 30 days is jurisdictional, and that courts may not review a motion for compassionate release before the administrative procedures in the BOP are followed. However, some courts in Michigan, New York, and elsewhere have ruled to the contrary, stating that the 30 days is not jurisdictional, and that motions for compassionate release can be heard immediately.
This issue is obviously of paramount importance in the middle of the COVID-19 pandemic. With COVID-19 spreading as quickly and aggressively as it is in our community, let alone inside of prisons, 30 days is an eternity. Most inmates that are diagnosed with COVID-19 and develop serious symptoms need medical attention within 72 hours, not in 30 days. Inmates with serious health problems that put them in the high risk category if they contract COVID-19 need immediate isolation and quarantine from the general prison population, not release in 30 days.
The Third Circuit United States Court of Appeals just ruled that the 30 days is jurisdictional, and that prisoners must apply to the BOP for compassionate release and wait at least 30 days before they can file a motion in court. The defendant in that case has filed a request for en banc review by the entire circuit, meaning all of the judges, so events are sure to be happening daily.
In the meantime, what would increase a prisoner’s chance of success on a compassionate release motion on the merits? The first issue is going to be the nature of the underlying conviction. Offenses that are non-violent, did not involve weapons, and were not assaultive will stand a much higher chance of success. Likewise a sentence with a shorter time period remaining to be served, particularly those where at least half of the sentence has been completed, will also increase a prisoner’s chances. Finally, the prisoners age (particularly if they are over 70), and serious health problems will be important factors, particularly in the current COVID-19 pandemic atmosphere.
As discussed previously, this is an ever changing and fast developing area of the law. Do not guess about the future of a loved one. Contact an experienced attorney before making any decisions or choosing any course of action.
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