Senate Panel OKs COVID Compassionate Release Bill

By Sarah Martinson
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Law360 (May 27, 2021, 5:05 PM EDT) -- A U.S. Senate committee voted Thursday to advance a bill that would make more federal inmates eligible to be released early from prison and sent to home confinement during and after the COVID-19 pandemic.

On a 14-8 vote, the Senate Judiciary Committee passed the COVID-19 Safer Detention Act of 2021, also referred to as S. 312. The bill would expand the Federal Bureau of Prisons' early release program for inmates who are 60 or older and terminally ill inmates to include nonviolent offenders whose age or health conditions put them at a higher risk for serious illness from the coronavirus.

Committee Chair Sen. Dick Durbin, D-Ill., who sponsored the proposed legislation, told the committee before the bill's passage that the pandemic has shown that the BOP can't be trusted to identify and release prisoners who are vulnerable to the coronavirus.

"The Bureau of Prisons failed," Durbin said, adding that nearly 31,000 inmates requested compassionate release during the pandemic and the Bureau of Prisons approved only 36, which is fewer requests than it approved the year before the pandemic.

During the coronavirus pandemic, prisons had almost four times more confirmed coronavirus cases and twice as many deaths as the general public, according to a December report from the National Commission on COVID-19 and Criminal Justice.

Advocacy organizations like Families Against Mandatory Minimums, a nonprofit seeking to end mandatory sentencing, fought for more compassionate releases for people who are vulnerable to the coronavirus, but faced resistance from the BOP.

Federal courts stepped in and granted some compassionate release requests that had been rejected and appealed, Durbin said, noting that the courts' decisions most likely saved thousands of lives.

In February, Durbin introduced the bill that would to allow federal courts to continue to grant compassionate releases to eligible elderly and terminally ill inmates. The bill expands the BOP pilot program that was created by the 2007 Second Chance Act.

Some Republicans including Sens. Tom Cotton, R-Ark., and Ted Cruz, R-Texas, opposed the bill before the vote. Cotton said that the bill was unnecessary because all prisoners have been offered COVID-19 vaccines minimizing the risks of exposure to the virus. He proposed an amendment to the bill that would make inmates who have been offered a vaccine ineligible for early release.

"Most of this bill is expansion of criminal leniency policies for serious offenders under the guise of protecting inmates," Cotton said.

However, Sen. John Cornyn, R-Texas, noted that only 40% of federal prisoners have been vaccinated, pointing to a recent New York Times analysis that found prisoner vaccination rates were lower than that of the general population. Cornyn recommended that the bill be amended to incentivize prisoners to get vaccinated by offering them more privileges.

In response to the bill's passage, Kara Gotsch, deputy director at The Sentencing Project, a nonprofit that supported the bill, said in a Thursday statement that the bill "has the potential to right-size extreme prison sentences that incarcerate people into old age, long after they have aged out of criminal behavior."

"As federal prisons continue to struggle with controlling the pandemic, Congress and the president must enact these common sense approaches to reduce prison populations safely," Gotsch said.

The committee postponed voting on two bills that would prohibit sentencing enhancements for charges the defendants have been acquitted of and allow some people who were convicted as minors and have served 20 years to be released early.

Lawmakers began debating the Prohibiting Punishment of Acquitted Conduct Act of 2021, or S. 601, but didn't start discussing the First Step Implementation Act of 2021, or S. 1014.

Cornyn expressed concerns about S. 601 and said that judges should be allowed to consider acquitted offenses in some cases like when a sexual offender has repeatedly abused a victim and has some charges dropped because they are based on abuse that happened too long ago to be prosecuted.

"There are circumstances that would endure to the benefit of a guilty criminal defendant and violate the rights of crime victims to be heard as provided by law," Cornyn said.

--Editing by Brian Baresch.

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