As the coronavirus disease 2019 (COVID-19) pandemic continues to spread in the federal prison system, and amid growing concern within the legal community concerning the safety of vulnerable jail and prison populations, US Attorney General William Barr has issued two memoranda directing the federal Bureau of Prisons (BOP) to expand its use of home confinement for inmates in appropriate cases.
In the first memorandum, issued on March 26, 2020, Barr directed the BOP to prioritize the use of various statutory authorities, as described in more detail below, to grant home confinement for inmates seeking transfer in connection with the COVID-19 pandemic. In assessing which inmates should be granted home confinement, the BOP should consider (1) the totality of the circumstances for each individual inmate; (2) the statutory requirements for home confinement; and (3) the following non-exhaustive list of discretionary factors:
- The age and vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;
- The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities;
- The inmate’s conduct in prison;
- The inmate’s score under Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN);
- Whether the inmate has a demonstrated and verified a re-entry plan that will prevent recidivism and maximize public safety; and
- The inmate’s crime of conviction, and the assessment of the danger posed by the inmate to the community.
In addition to considering these factors, and before granting an inmate discretionary release, the memorandum further directs that the BOP Medical Director (or designee) must make an assessment of the inmate’s risk factors for severe COVID-19 illness based on CDC guidance, as well as an assessment of the risks of COVID-19 at the inmate’s prison facility compared to the risks of COVID-19 at the location where the inmate seeks home confinement.
The memorandum was prompted by dire warnings issued by public health and corrections officials in recent weeks that cramped and unsanitary conditions could turn prisons into a haven for COVID-19, endangering not just inmates but also corrections officers, healthcare workers, and their families and communities. Criminal justice reform advocates from across the political spectrum have urged BOP, and the courts, to allow “compassionate release” or home confinement for at-risk inmates, and have urged US Attorney’s offices to decline or suspend prosecutions and seek arrest warrants only in cases involving a specific and substantial risk that a person will cause bodily injury to or use violent force.
Recognizing the speed at which COVID-19 was spreading through the general public, and acknowledging significant levels of infection at several BOP facilities, Barr issued a second memorandum on April 3, 2020, directing the BOP to immediately maximize appropriate transfers to home confinement of all appropriate inmates held at FCI Oakdale, FCI Danbury, FCI Elkton, and at other similarly situated BOP facilities where COVID-19 is materially affecting operations.
BOP currently has the authority to expand its use of community-based correctional facilities under the following statutes:
- Extraordinary and compelling reasons. 18 U.S.C. § 3582(c)(1)(A)(i) permits BOP, or a defendant, after fully exhausting administrative rights of appeal, to petition the court to reduce an inmate’s sentence for “extraordinary and compelling reasons.”
- Home confinement for inmates with one year remaining.18 U.S.C. § 3624(c)(1) directs BOP to ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months) in a community correctional facility (halfway house) or appropriate conditions that will afford the prisoner a reasonable opportunity to adjust and prepare for the reentry of that prisoner to the community (home confinement), provided that home confinement cannot exceed the shorter of 10 percent of the term of imprisonment of that prisoner or six months. To the extent practical, BOP is directed to place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this statute.
- Elderly offenders and terminally ill offenders. The elderly offender and terminally ill offender pilot program authorized under 34 U.S.C. § 60541 waives the requirements of 18 U.S.C. § 3624 (home confinement for inmates with one year remaining) to provide for the transfer to home confinement any eligible person who is over 60 years old and has served at least two-thirds of his or her sentence or is terminally ill.
- BOP’s general designation authority.18 U.S.C. § 3621(b) directs BOP to designate the place of a prisoner’s imprisonment, taking into account the resources of the facility contemplated; the nature and circumstances of the offense; the history and characteristics of the prisoner; any statement by the court that imposed the sentence concerning the purposes for which the sentence to imprisonment was determined to be warranted or recommending a type of penal or correctional facility as appropriate; and any pertinent policy issued by the Sentencing Commission. BOP is authorized to re-assess and re-designate the place of a prisoner’s imprisonment, as appropriate.
According to government statistics, approximately 10,400 inmates currently in BOP custody are over the age of 60, and some may have underlying health conditions. Over 10,000 prisoners are serving time for non-violent offenses. Therefore, in theory, Barr’s directives could have a significant impact on the federal prison system as a whole.
In practice, Barr’s instructions may impact white collar inmates to a greater degree for several reasons. Among these are Barr’s directives (i) to prioritize prisoners housed in low and minimum security facilities; and (ii) to consider whether a prisoner would face a higher risk of infection if released to home confinement. These criteria may tend to favor release for white collar prisoners (typically housed in low or medium security prisons) who have resources (and thus the ability to demonstrate a release plan including housing with lower risk of infection) to a greater degree than others, but relief is available to all who qualify.
Some high-profile white collar offenders have already sought release amid growing COVID-19 pandemic concerns. On April 10, 2020, Michael Avenatti – best known for his representation of adult-film actress Stormy Daniels in her lawsuits against President Donald Trump and his conviction for attempting to extort millions of dollars from Nike – was granted a 90-day reprieve from jail amid the coronavirus outbreak. Avenatti argued that he is more vulnerable than most inmates because he battled a case of pneumonia last fall. U.S. District Judge James V. Selna ordered Avenatti to be released on $1 million bond to a Venice, California residence, where he will be subject to monitoring and other conditions. While on release, Avenatti will be able to review printouts of legal documents to prepare his defense for two upcoming trials in New York and California, but may not access the internet by himself.
Other vulnerable prisoners have successfully petitioned for release. Wilson Perez, an inmate at the Metropolitan Detention Center serving a three year sentence for kidnapping and conspiracy, was granted a sentence reduction to time served and immediate release to begin his two-year term of supervised release. Perez faced a “heightened risk of serious illness or death from COVID-19 due to his preexisting medical issues,” which included pain and vision problems due to facial reconstructive surgery. U.S. v. Perez, No. 17-CR-513-3-AT, 2020 WL 1546422 (Apr. 1, 2020).
Morris E. Zukerman, a prisoner serving his sentence at FCI Otisville for tax evasion was recently granted a sentence modification such that his remaining term of imprisonment was replaced by an equal period of home incarceration. Zukerman’s serious health conditions, including diabetes, hypertension, and obesity, when taken together with the COVID-19 public health crisis, constituted extraordinary and compelling reasons to modify his sentence. In both cases, U.S. District Judge Analisa Torres held that the Section 3582(c)(1)(A) statutory exhaustion requirement could be waived because undue delay could result in catastrophic health consequences. In Zukerman, the Court reasoned that “requiring him to exhaust administrative remedies, given his unique circumstances and the exigency of a rapidly advancing pandemic, would result in undue prejudice and render exhaustion of the full BOP administrative process both futile and inadequate.” U.S. v. Zukerman, No. 16-CR-194-AT, 2020 WL 1659880, at *4 (Apr. 3, 2020).
Barr’s memoranda echo moves by state and local authorities. Across the country, thousands of inmates in Alabama, Arizona, California, Colorado, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Washington, West Virginia, and Wisconsin have already been released from detention centers in an effort to minimize the risk of COVID-19 to those in custody, while also minimizing the risk to the public.
See Attorney General Barr’s March 26, 2020 Memorandum and April 3, 2020 Memorandum.
DLA Piper’s Global White Collar and Corporate Crime group is working closely with a wide range of clients to navigate this complex and evolving legal environment. Stay tuned for further developments. If you have any questions regarding these new requirements and their implications, please contact any member of our team or your DLA Piper relationship attorney.
Please visit our Coronavirus Resource Center and subscribe to our mailing list to receive alerts, webinar invitations and other publications to help you navigate this challenging time.
This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.
 Letter to AG Barr et al from the Federal Public & Community Defenders Legislative Committee, March 19, 2020.