WHAT CAN WE DO?
We look to 18 U.S.C. Section 3582, otherwise known as the First Step Act. The First Step Act allows for the modification of an imposed term of imprisonment if there are extraordinary and compelling reasons that warrant such a reduction.
HOW DOES IT WORK?
To grant a compassionate release, the courts balance between the extreme circumstances of the prisoner and the need for their initial sentence. In determining the need for the prisoner’s original sentence, the court considers:
- The seriousness of the offense
- Promoting respect for the law
- Providing just punishment for the offense
- Affording adequate deterrence to criminal conduct
- Protecting the public from further crimes of the prisoners and
- Providing the prisoner with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner
Although some of these factors are greatly affected by the spread of coronavirus, the courts will still attempt to balance the reasons that prisoners need to be released early and the reasons why they were imprisoned in the first place.
Then the court must determine that
- Extraordinary and compelling reasons warrant the reduction and
- The prisoner is not a danger to the safety of any other person or to the community
EXTRAORDINARY AND COMPELLING
Extraordinary and compelling reasons include
- Prisoner’s Medical Condition
- Prisoner’s age
- Family Circumstances
- Other relevant extraordinary and compelling reasons
Generally, for a prisoner’s medical condition to be considered an extraordinary and compelling reason, the prisoner must be:
- Suffering from a serious and advanced illness with an end of life trajectory
- Suffering from a serious physical or medical condition
- Suffering from a serious functional or cognitive impairment
- Experiencing deteriorating physical or mental health because of the aging process that diminishes the prisoner’s ability to provide self-care in the environment of a correctional facility
For a prisoner’s age to be considered an extraordinary and compelling reason, the prisoner must be:
- At least 65 years old and
- Experiencing a serious deterioration in physical or mental health because of the aging process and
- Has served at least 10 years or 75 percent of his or her term of imprisonment (whichever is less).
For a prisoner’s family circumstances to be considered an extraordinary and compelling reason:
- The caregiver of the prisoner’s minor child or children has become incapacitated or died
- The prisoner’s spouse was incapacitated and the prisoner would be the only available caregiver for the spouse
Rehabilitation of the prisoner, by itself, is not an extraordinary and compelling reason
COVID-19, EXTRAORDINARY AND COMPELLING
The populations most at risk during COVID-19 are the elderly, the immunocompromised, and those with other chronic medical conditions.
Being immunocompromised includes cancer treatment, smoking, bone marrow or organ transplantation, HIV or AIDS, or prolonged use of corticosteroids.
Other medical conditions specifically at risk during the pandemic are lung disease, asthma, heart conditions, diabetes, renal failure, and liver disease.
These conditions make people more likely to suffer complications and much more likely to incur fatal consequences from COVID-19. Many prisoners were not sentenced to death through the court system but now find themselves in a potentially fatal sentence. The gravity and likelihood of serious illness and death in Ohio prisons is extraordinary and compelling, and too great to ignore.
HOW TO START THE PROCESS
First, a prisoner must request that the Bureau of Prisons bring a motion to the court on their behalf. Generally, the prisoner must fully exhaust all administrative rights to appeal the Bureau of Prisons failing to bring the motion, or wait 30 days before bringing a motion to the court on their own behalf.
However, because the coronavirus pandemic is so urgent and the risk facing the prisoners is so great and time sensitive, courts have waived the 30-day waiting period in several cases due to these emergent circumstances.
The exhaustion requirement is not absolute. There are several factors explored by the courts when deciding whether or not to waive the exhaustion requirement. Failure to exhaust may be excused if
- Exhaustion would be futile
- The administrative process would be incapable of granting adequate relief
- Pursuing agency review would subject plaintiffs to undue prejudice
Because the coronavirus pandemic has already begun to spread through federal prisons, every day is vital. If the purpose of the compassionate release is to protect inmates and the general public from the virus, waiting 30 days may render the motion utterly pointless.
Going through the administrative process with the Bureau of Prisons is inadequate relief during this pandemic because, again, any delay to this process is potentially fatal.
During the pandemic, prisoners most likely to obtain compassionate release have some medical condition that makes them high-risk for COVID-19 and show a low risk of recidivism. These are not people who were sentenced to death. Yet, they find themselves facing a potential death sentence because of the coronavirus pandemic. Therefore, any delay to their release by waiting 30 days to pursue agency review, would cause undue prejudice.
COVID-19 meets all the factors discussed in waiving the exhaustion requirement for compassionate release, so motions can be made immediately and directly to the court. Soroka & Associates is here to assist in this process.
This is an incredibly crucial step for the safety of inmates applying for compassionate release, but also other inmates, and the general public. The federal prison conditions combined with COVID-19 creates a serious issue for public health. With prison employees going in out of the facilities, coronavirus is going in and out as well, spreading into the public. It is vital to the health and well-being of all people to release federal prisoners that have a high risk medically and a low risk of recidivism.
If you know someone who may qualify for seeking compassionate release, consider seeking the advice of the experienced attorneys of Soroka & Associates LLC to assist in the intricacies of this process.