Fed. Prisoners See Limited Success In Pandemic Release Bids

By Stewart Bishop
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Law360 (June 11, 2021, 9:14 PM EDT) -- Federal prisoners who asked courts to grant them compassionate release during most of the COVID-19 pandemic have succeeded 21% of the time, according to the U.S. Sentencing Commission, faring far better in court than through internal requests to the Federal Bureau of Prisons.

In a report released Thursday on compassionate release motions made by offenders during the pandemic in 2020, the commission said that 12,138 motions for compassionate release were filed in federal courts, of which 2,549 were granted, while 9,589, or 79% of such motions were denied by judges.

Most of the compassionate release motions were filed by offenders, according to the commission, a reality made possible by the First Step Act of 2018. Before the advent of that law, courts could only consider compassionate release motions filed by the director of the BOP.

Compassionate release allows courts to cut prison terms when, among other things, "extraordinary and compelling reasons" exist to merit a reduction.

Prisoners have had much less success during the pandemic petitioning the Bureau of Prisons for compassionate release. According to an April letter to Congress from the BOP's general counsel, federal prison wardens have received almost 31,000 requests for compassionate release since March 1, 2020.

Of those requests, wardens recommended approval in 374 cases, but only 36 of those, or 0.116%, were approved by the BOP director, according to the letter from the bureau's general counsel, Ken Hyle. The remainder of those compassionate release requests were either denied or not acted upon one way or the other within 30 days of the wardens receiving the applications. 

In 34 of the 36 cases approved by the BOP's director, U.S. attorneys' offices filed motions in court on the director's behalf. Hyle said the bureau lacks reliable data on the number of compassionate release requests received by federally contracted private prisons. 

Thirty-five offenders have died while their compassionate release requests were under review, the letter says. According to BOP statistics, as of Friday 238 federal inmates' and four BOP staff members' deaths have been attributed to COVID-19.

According to data compiled by nonprofit news outlet the Marshall Project and the Associated Press, at least 256 deaths have been reported among federal prisoners and 49,324 cases of COVID-19 in the federal prison population.

Typically, people incarcerated in federal facilities must exhaust their administrative remedies by taking a request internally to the BOP or waiting 30 days to lapse after submitting a request to the warden of their facility before filing a motion for compassionate release in federal court. Some federal judges have held that they have the power to waive those requirements.

According to the Sentencing Commission report, the top two courts for the number of compassionate release motions filed were the Southern District of Florida, with 497 motions filed, and the Southern District of New York, with 496. The results in those two districts mirror the national results with a roughly 80/20 split for denials and grants.

The third district with the most compassionate release motions filed, the Middle District of Florida, showed a much lower success rate for offenders, with only 28 motions of 430 that were filed being granted, for a win rate of 6.5%.

Oregon was the district with the highest rate of compassionate release grants by courts, with 68.5% of such requests made to courts being granted during the pandemic in 2020, or 63 of 92 total motions.

Other districts in U.S. states with high rates of compassionate release grants by federal courts amid COVID-19 include Rhode Island at 64.4%, Massachusetts with 61.3%, Vermont at 58%, the Southern District of California with 53.1% and Connecticut at 52.4%. Puerto Rico and Guam also had high rates of compassionate release grants by courts, but comparatively fewer cases overall.

Among the districts with the lowest rate of successful motions for compassionate release during the pandemic in 2020, the Western District of North Carolina stands out with 2.1% of such motions being granted, or only five out of 241 motions filed. Other districts with low rates of successful compassionate release motions during this time include the Southern District of Georgia with 2.5%, the Eastern District of Arkansas at 2.8% and the Eastern District of Oklahoma with 2.9%.

Apart from compassionate release, BOP says it has significantly increased the number of prisoners released to home confinement since former Attorney General William Barr in March of 2020 asked the Bureau of Prisons to expand the use of home detention, particularly for older, medically vulnerable prisoners who have served a substantial portion of their sentences and who don't' pose a threat to society.

There have been 26,786 people placed in home confinement since then, according to the BOP, including some who have finished serving their sentences. The Bureau of Prisons says it currently has 7,203 inmates in home confinement. The bureau says 129,283 inmates are currently in BOP-run institutions and 13,944 in community-based facilities.

In late May, the U.S. Senate Judiciary Committee voted 14-8 to advance the COVID-19 Safer Detention Act of 2021, also referred to as S. 312. The bill would expand BOP's early release program for inmates 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.

--Editing by Peter Rozovsky.

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

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