Tips For Prisoner Release Requests During Pandemic

By William Athanas, JD Thomas and Charles Prueter
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Law360 (April 12, 2020, 8:02 PM EDT) --
William Athanas
William Athanas
JD Thomas
JD Thomas
Charles Prueter
Charles Prueter
Once imposed, a federal prison sentence can be reduced by one of only two ways: either the government moves to decrease the sentence under Federal Rule of Criminal Procedure 35 based on the defendant's provision of substantial assistance in the investigation of others, or the defendant qualifies for "compassionate release" under U.S. Code Title 18, Section 3582(c).

For decades, compassionate release was rarely granted, largely because the Bureau of Prisons served as the sole gatekeeper authorized to determine whether courts could consider whether the movant had satisfied the criteria for compassionate release.[1]

Two factors recently changed that: (1) The First Step Act of 2018 amended the statute to allow prisoners to directly petition courts for compassionate release, and (2) the COVID-19 pandemic created an environment which expands substantially the instances supporting the statute's invocation.

This article reviews the legal framework applied to assess compassionate release requests seeking relief based on the pandemic, and endeavors to extract guiding principles from 70 of the decisions issued by federal courts in the past three weeks in an effort to inform eligibility determinations and increase the likelihood of success of future motions.

The Relevant Legal Framework

Under U.S. Code Title 18, Section 3582(c), a court may not modify a term of imprisonment once it has been imposed except in limited circumstances, including where the court finds that "extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."[2]

Before the court can make this determination, however, the motion must be made by the director of the Bureau of Prisons, or by the defendant after he "has fully exhausted all administrative rights to appeal" the BOP's failure to do so, or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.[3]

Congress did not define what constitutes "extraordinarily and compelling reasons." Instead, it directed the U.S. Sentencing Commission to promulgate the criteria to be applied and a list of specific examples of extraordinary and compelling reasons. The Sentencing Commission did so in Section 1B1.13 of the U.S. Sentencing Guidelines, establishing three potential categories: the defendant's medical condition; the defendant's age; and the defendant's family circumstances.[4]

In the context of COVID-19, the defendant's medical condition is the basis most frequently invoked to satisfy the "extraordinary and compelling reasons" basis. Under the guideline, compassionate release is warranted where "[t]he defendant is ... suffering from a serious physical or medical condition ... that substantially diminishes the ability to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover."[5]

In addition to making this finding, a court considering a request for compassionate release must also find that the defendant is not a danger to the safety of any other person or to the community.[6] Finally, the court must apply the factors contained in U.S. Code Title 18, Section 3553(a), which guide sentencing generally.[7]

Motions for Compassionate Release Based on COVID-19

In mid-March, as it became clear that the COVID-19 pandemic was poised to spread exponentially across the United States, concern grew about risk of virus in correctional facilities.

As the U.S. District Court for the Eastern District of Pennsylvania noted in the context of a request for compassionate release, "prisons are tinderboxes for infectious disease."[8] Correctional facilities increase the risk of contracting infectious diseases like COVID-19, because they house high numbers of inmates with chronic, often untreated, illnesses in a setting with minimal levels of sanitation, limited access to personal hygiene, and limited access to medical care. In addition, social distancing is essentially impossible, allowing the virus to spread rapidly once it takes root.[9]

Defendants began to file motions for compassionate release premised on COVID-19 fears in the third week of March. In reviewing 70 of the orders issued in response to these motions since March 17, it is interesting to note that only one was filed by an inmate actually suffering from the disease.[10] Instead, those seeking relief premised their requests on risk of harm that would result were they to become infected.

A review of decisions issued as of April 10 reveals a number of guiding principles:

  • Exhaustion of administrative remedies is the key factor. In all but three of the 43 cases where courts denied relief, failure to exhaust administrative remedies was the primary reason given. In the 24 cases where relief was granted, the defendant was found to have exhausted administrative remedies, or the court determined that an exception to the exhaustion requirement existed.

  • Government consent is an important, but not essential, factor. To be sure, a defendant's ability to secure government consent to the motion was valuable. Compassionate release was granted in all of the cases where the government consented to the relief sought. But even in the remaining cases where the government objected to the motion, compassionate relief was granted in 13 instances (note that it was unclear whether the government opposed relief in the remaining cases).

  • Types of health conditions matter. As one would expect, motions filed by inmates with significant respiratory issues were granted most frequently.[11] Success was not limited to inmates experiencing those conditions, however, as courts also granted compassionate release for those suffering from diabetes, hypertension, Crohn's disease, and other instances where inmates suffered from chronic conditions which left them immunocompromised.[12] Note that not all inmates suffering from such conditions have been deemed eligible for relief, however, if they failed to exhaust administrative remedies.[13]

  • Length of sentence remaining was not a determinative factor. While many of the defendants successful in gaining release had a relatively short amount of time left before completing their sentences, courts have not required deemed that a perquisite. In fact, of the defendants whose motions have been granted, 10 had a year or more left to serve.[14]

  • Presence of the virus in the facility. Several courts which granted relief cited this factor as evidence of "extraordinary and compelling reasons," including one which distinguished cases denying relief on the grounds on the fact those defendants were not housed in facilities where "where COVID-19 was spreading."[15] At least half the cases made no mention of this factor, however, suggesting that it is not a necessary prerequisite. In one instance, relief was granted even though the defendant had already been released to a residential reentry center.[16]

  • Date motion was filed. The exponential growth of the pandemic has not translated into greater success for defendants seeking compassionate release. There is no correlation between the timing of the motion's filing and its likelihood of success. In fact, of the 57 motions ruled on since April 1 (as the pandemic's growth has multiplied), approximately two-thirds were denied.

Recommendations to Enhance Likelihood of Success

The rulings issued thus far suggest that chances of securing compassionate release premised on COVID-19 are boosted significantly where the defendant is able to accomplish one or more of three goals:

1. Overcoming the Exhaustion Requirement

The defendant must address and somehow overcome the exhaustion of administrative remedies requirement. The cases reflect that this is the most likely pitfall movants face. In an environment where the threat of harm is growing exponentially by day, the requirement of a 30-day waiting period is particularly problematic.

While no one can turn back time, if the defendant has already submitted a request for compassionate relief to the BOP, that fact should be highlighted. In at least two cases, courts have deferred ruling and directed the BOP to make an administrative determination promptly.[17] Defendants seeking relief less than 30 days after submitting their request to BOP should consider asking the court to order BOP to rule on that request on an accelerated timeline.

Even where the defendant has not yet filed sought relief from the BOP, or is still waiting for a response, movants may find support in the numerous cases which have deemed the exhaustion requirement waived or otherwise satisfied based on the finding that failure to do so would jeopardize the inmate's health.[18]

Alternatively, defendants unable to show exhaustion of remedies but who are able to secure the government's consent to the motion can cite to those decisions that have found such agreement sufficient to eliminate the need to exhaust available BOP remedies.[19]

2. Identifying Relevant Medical Conditions

Cases granting relief have typically premised their rulings on the heightened risks certain defendants face. To be clear, it is not necessary that the movant actually be suffering from COVID-19 in order to secure relief, nor is it essential that the virus even be present in the inmate's facility (although that can support the motion).

What matters most is that the defendant is suffering from "a serious physical or medical condition ... that substantially diminishes the ability to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover." In other words, courts look at whether the defendant has a medical condition currently which, when combined with COVID-19, would imperil the defendant's survival.

To meet this requirement, movants should be mindful of the numerous cases referenced above which granted relief significant involved defendants suffering from significant respiratory conditions, but also recognize that relief may be available even for those who are not experiencing such conditions.

Ultimately, counsel must be able to demonstrate that the defendant currently suffers from a condition that creates enhanced risk of severe harm or death when combined with COVID-19. Doing so increases greatly the possibility that a court will find "extraordinary and compelling reasons" exist to grant the motion.

3. Securing the Government's Consent

In any context, obtaining the government's agreement to the relief in question improves greatly the likelihood of securing it.

None of the reported cases thus far involve courts denying relief the government agreed was appropriate. As a result, there is real value to taking the time to communicate with the government before a compassionate release motion is filed in an attempt to present an agreed-upon recommendation for the court's consideration. In doing so, counsel should highlight the factors referenced herein, focusing on those instances where relief was granted for similarly situated defendants.

In this environment, it is important to recognize no one is interested in gratuitously exposing inmates to greater harm. But one must also remember that government representatives faced with requests for compassionate relief — whether U.S. Department of Justice attorneys or BOP representatives — are duty bound to apply the legal framework in a principled, fair and consistent manner.

Where counsel are able to demonstrate that relief is appropriate both as a matter of law and principles of equity, the chances of securing the government's consent — and, by extension — success in obtaining the court's approval, improve significantly.

 4. Considering an Alternative Approach

In denying a motion for compassionate release, at least one court has suggested that a furlough would be a more appropriate means of granting relief.

In one recent decision, the U.S. District Court for the Southern District of New York determined that the defendant failed to exhaust administrative remedies and denied her motion.[20] In doing so, however, the court recognized that BOP had an alternative mechanism which would not grant the defendant the "windfall" of being released permanently": exercise of the agency's furlough authority under U.S. Code Title 18, Section 3622. The court acknowledged that the BOP had sole discretion to invoke the statute, but nevertheless noted that nothing in the statute "prevents this court from recommending that BOP exercise its discretion to grant Ms. Roberts temporary release."[21]

For those defendants with no other viable option — particularly those facing lengthy sentence — this may be an option worth considering.


The number of compassionate release motions premised on COVID-19 is likely to increase as pandemic worsens in the days and months to come. Because the law governing evaluation of such motions is so recent, those seeking relief on the basis of "extraordinary and compelling reasons" are well served by understanding which factual scenarios and legal arguments best position those requests for successful outcomes.

William C. AthanasJD Thomas and Charles Prueter are partners at Waller Lansden Dortch & Davis LLP.

"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] William W. Berry III, Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release, 68 Md. L. Rev. 850, 868 (2009) (noting that, in the 1990s, 0.01 percent of inmates annually were granted compassionate release).

[2] 18 U.S.C. §3582(c)(1)(A)(i). The statute also grants the court authority to reduce an imposed sentence where the defendant is at least 70 years old, has served at least 30 years in prison, and is not deemed a danger to the community. 18 U.S.C. §3582(c)(1)(A)(ii).

[3] 18 U.S.C. §3582(c)(1)(A).

[4] U.S.S.G. §1B1.13, App. Note 1.

[5] U.S.S.G. §1B1.13, App. Note 1(A)(ii).

[6] U.S.S.G. §1B1.13(2). Section 3582 requires this showing only where the motion is based on the defendant's age and amount of time already served. See 18 U.S.C. §3582(c)(1)(A)(ii). This eliminates the need to make such a showing where the motion is premised on "extraordinary and compelling reasons." But U.S.S.G. §1B1.13 effectively contradicts that language. At least one court has followed the Guideline's mandate in denying a motion for compassionate release where the defendant had shown "extraordinary and compelling reasons" but was unable to demonstrate that he was not a danger to the community. See United States v. Butler , No. 18-cr-834, 2020 WL 1689778, at *2-3 (S.D.N.Y. Apr. 7, 2020).

[7] 18 U.S.C. §3582(c)(1)(A).

[8] United States v. Rodriguez , No. 16 Cr. 78-01, 2020 WL 1627331, at *1 (E.D. Penn Apr. 1, 2020).

[9] See United States v. Davis , 2020 WL 1529158, at *4 (D. Md. Mar. 30, 2020) ("the inability to practice social distancing in jails makes transmission of COVID-19 more likely").

[10] See United States v. Matera , No. 03-743, 2020 WL 1700250 at *1 (S.D.N.Y Apr. 8, 2020).

[11] See, e.g., United States v. Gonzalez , No. 18-232, 2020 WL 1536155 at *1 (E.D. Wash. Mar. 31, 2020) (COPD, emphysema); United States v. Hernandez , No. 18-834, 2020 WL 1684062 at *1 (S.D.N.Y Apr. 3, 2020) (asthma).

[12] See, e.g., United States v. Muniz , No. 09-199, 2020 WL 1540325 at 2 (S.D.TX Mar. 30, 2020) (end stage renal disease, hypertension, diabetes); United States v. Zukerman , No. 16-194, 2020 WL 1659880 at *1 (S.D.N.Y Apr. 3, 2020) (diabetes, hypertension, obesity); United States v. Colvin, No. 19-179, 2020 WL 1613943 at *1 (D. Conn. Apr. 2, 2020) (hypertension, diabetes); United States v. Campagna , No. 16-78, 2020 WL 1489829 at *1 (S.D.N.Y Mar. 27, 2020) ("compromised immune system with very low white blood cell counts"); United States v. Jasper, No. 18-390 (S.D.N.Y Apr. 6, 2020) (Crohn's disease).

[13] See United States v. Ramos , No. 14-cr-484, 2020 WL 1685812, at *2 (S.D.N.Y. Apr. 7, 2020) (defendant suffering from asthma adequately treated by BOP); United States v. Gileno , No. 19-cr-161, 2020 WL 1307108, at *3 (D. Conn. Mar. 19, 2020) (defendant suffering from high blood pressure, high cholesterol, asthma did not meet requirement of demonstrating extraordinary and compelling reasons for relief).

[14] See, e.g., United States v. Muniz, No. 09-199, 2020 WL 1540325 at *1 (S.D.TX Mar. 30, 2020) (38 months remaining); United States v. Rodriguez, No. 03-271, 2020 WL 1627331 at *1 (E.D. Penn Apr. 1, 2020) (36 months remaining); United States v. Resnick , No. 12-152, 2020 WL 1651508 at *1 (S.D.N.Y Apr. 2, 2020) (33 months remaining); United States v. Zukerman, No. 16-194, 2020 WL 1659880 at *1 (S.D.N.Y Apr. 3, 2020) (27 months remaining).

[15] See United States v. Zukerman, No. 16-194, 2020 WL 1659880 at *4, n.3 (S.D.N.Y Apr. 3, 2020). For those seeking to make this argument, information contained at shows the number of COVID-19 cases and deaths at facilities throughout the United States.

[16] See United States v. Campagna, No. 16-78, 2020 WL 1489829 at *1 (S.D.N.Y Mar. 27, 2020).

[17] See, e.g., United States v. Jemal , No. 15-570, 2020 WL 1701706 at *3-4 (E.D. Penn Apr. 8, 2020) (providing BOP four days to rule on defendant's request for compassionate release, which had already been pending for 10 days); United States v. Gross, No. 15-7691, 2020 WL 1673244, at *3-4 (S.D.N.Y. Apr. 6, 2020) (ordering government to submit BOP determination within three days).

[18] See, e.g., United States v. McCarthy , No. Cr. 92-0070, 2020 WL 1698732, at *4 (D. Conn. Apr. 8, 2020); United States v. Colvin , No. 19-cr-179-JBA, 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020); United States v. Powell , No. 94-cr-316-ESH (Dkt. No. 98) (D.D.C. Mar. 28, 2020); United States v. Zukerman, No. 16 Cr. 78-01, 2020 WL 1659880, at *3-4 (S.D.N.Y. Apr. 3, 2020); United States v. Perez , No. 17 Cr. 513-3, 2020 WL 1546422, at *2 (S.D.N.Y. Apr. 1, 2020).

[19] United States v. Villanueva , No. 18-472, Doc. 85 at 7-8 (SDNY Apr. 8, 2020); United States v. Marin, No. 15-cr-252 (PKC)(E.D.N.Y. March 30, 2020).

[20] United States v. Roberts , No. 18 Cr. 528, 2020 WL 1700032 (S.D.N.Y. Apr. 8, 2020).

[21] Id. at *4.

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