By Reenat Sinay

Law360 (February 10, 2021, 6:56 PM EST) -- A group of U.S. senators is pushing to expand compassionate release eligibility for elderly federal inmates during the pandemic and beyond, wielding bipartisan support to revive a bill that failed to advance last year.

Authored by Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, the respective chair and ranking member of the Senate Judiciary Committee, the COVID-19 Safer Detention Act of 2021 seeks to bring parts of the First Step Act in line with the pandemic's impact on the U.S. Bureau of Prisons' elderly population.

The bill would reform the Elderly Home Detention Pilot Program for elderly and terminally ill inmates, establishing vulnerability to COVID-19 due to age or ill health as a basis for compassionate release. The pilot program is part of the FSA, which was also authored by Durbin and Grassley and deals with home confinement requirements for inmates.

"My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence — just as the First Step Act intended," Durbin said in a statement Wednesday. "This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus, which we know thrives in places like prisons."

According to the senators, offenders over the age of 60 with pre-existing medical conditions account for more than half of the over 200 incarcerated people who have died from COVID-19 over the past year. Older inmates are also the fastest-growing prison population and the most expensive for the government due to their additional health care needs, the lawmakers said.

The BOP has opposed the majority of compassionate release petitions since the FSA was enacted in 2018, while courts have been more lenient, granting more than 2,000 such requests over the objections of the BOP and the U.S. Department of Justice, the statement said.

Thus far, the BOP has refused to approve home confinement requests based on susceptibility to severe symptoms of the novel coronavirus, according to the statement.

"In the middle of a pandemic, the federal government ought to be doing everything it can to protect the inmates in its care," Grassley said. "We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus."

Beyond providing older and more vulnerable inmates with easier access to home confinement, the bill would also temporarily shorten the judicial review period for COVID-19-related home confinement requests from 30 to 10 days. This speedy-review measure is designed to end when the pandemic does, specified in the bill as 30 days after the BOP stops its modified pandemic-era operations and returns to normal functioning.

The legislation would also permanently expand the eligibility criteria for compassionate release within the pilot program by trimming the required length of time served from ⅔ to ½ of a sentence, minus any credits for good behavior.

Also lending their names to the bill are senators from across the political spectrum, including Rhode Island Democrat Sen. Sheldon Whitehouse and Sen. Roger Wicker, a staunch Mississippi conservative.

Sens. Thom Tillis, R-N.C., Kevin Cramer, R-N.D., Chris Coons, D-Del., and Cory Booker, D-N.J., round out the list of co-sponsors.

The bill was initially floated last June but did not advance. It may have a better chance of moving forward now that Democrats have control of the Senate.

Representatives for the offices of Sens. Durbin and Grassley did not immediately respond Wednesday to requests for additional comment.

--Additional reporting by Andrew Kragie. Editing by Janice Carter Brown.

For a reprint of this article, please contact reprints@law360.com.