Following is my piece published on Medium.com on behalf of the National Association of Criminal Defense Lawyers:

Trying to Get Out of Federal Prison During the Pandemic? Don’t Forget To Ask the Warden First

NACDL

Apr 24 · 

By Timothy E. Zerillo*

On March 16th, I wrote an article for the National Association of Criminal Defense Lawyers, indicating that judges needed to rethink their sentencing of vulnerable populations in light of the coronavirus pandemic. Since then, COVID-19 cases across the United States have grown exponentially. The epicenter of the pandemic, New York City, has doubled its number of cases every two weeks since I last wrote on the subject.¹ The President of the United States has declared a national emergency due to the spread of the COVID-19 virus.

Like many lawyers, I have had a number of recent calls with federal prisoners and their families asking how they can get out of the Bureau of Prisons (the “BOP”) in light of the spread of the virus. Prisons are hotbeds for the spread of viruses, particularly a highly contagious one like COVID-19.² Some BOP facilities are letting short timers out on their own initiative. However, there are many inmates who should be considered for compassionate release that just do not make the list.

A motion for compassionate release permits a federal inmate to petition the court for their release due to factors like age and health, regardless of the present pandemic. Prior to the passage of the First Step Act, enacted December 21, 2018, the Director of the BOP had sole discretion to file for compassionate release but almost never did so. Through the First Step Act, Congress allowed inmates to petition courts for relief directly.

In response to the present pandemic, Congress passed the CARES Act, which provides for additional home confinement, expands the types of proceedings that can be done by video or telephone conferencing and allows for additional free video or telephone visitation with inmates. As it relates to COVID-19, the CARES Act allows the BOP Director to lengthen the maximum amount of time a prisoner may spend in home confinement during an emergency situation. On April 3, 2020, Attorney General William Barr issued a memo to Directors of the BOP to increase the use of home confinement. In the memo, AG Barr exercised his authority, under section 12003(b)(2) of the CARES Act, “to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons.”³

The CARES Act and compassionate release are separate concepts. If you are not being released by the BOP pursuant to the CARES Act — which has been made difficult by BOP’s highly selective and ever-changing criteria for release⁴— you may still wish to apply for compassionate release.

However, if you wish to apply for compassionate release, the first step is to ask the warden. In fact, there is a prerequisite that you exhaust your administrative remedies first, before filing a motion. The relevant code provision, found at 18 U.S.C. § 3582(c)(1)(A), states:

The court may not modify a term of imprisonment once it has been imposed, except . . . upon motion of the Director of the Bureau of Prison, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier…

While conditions vary in different facilities, the general process for an inmate to make his request to the warden, thereby starting the 30 days, is as follows: the prisoner, or someone on behalf of the prisoner,⁵ writes to the warden of the BOP facility where the prisoner is held, and requests their compassionate release. The reasons for the request should be explained in the letter (medical issues, age issues, family care issues, for example) and you are always wise to keep a copy of the correspondence.

If you are writing for compassionate release on behalf of a loved one, be sure to 1) include their name and registrant number, 2) tell the warden that you are requesting compassionate release and why you are doing so, 3) discuss if your loved one is impacted by coronavirus or is susceptible to it due to age or medical condition, explain why, and 4) provide your contact information and name. Again, keep a copy of the letter and send it certified mail or through a third party carrier, like FedEx or UPS, with a tracking number.

There are two primary reasons to write these letters right away. First, they are a prerequisite if you do later bring a motion in court. Remember, your motion may get tossed out of court before it is even considered if you have not exhausted your administrative remedies.

Second, you may get released just by filing the letter to the warden. Clients and their families who call me about compassionate release usually have no idea that they need to exhaust their administrative remedies first. One client who reached out to me recently did not know he first needed to write to the warden before filing a motion. He did so, and has now been released as a result of his request. The warden received his letter, looked at his case, and determined that he was eligible for home confinement. No motion to the court was needed.

Of course, the 30-day exhaustion requirement may be untenable in some circumstances. There are motions being filed by defense counsel across the United States urging courts to suspend the exhaustion requirement. This is a logical argument in the face of a growing pandemic, especially if you are a particularly vulnerable inmate. The National Association of Criminal Defense Lawyers is aggressively fighting the 30-day requirement in the courts because some inmates simply cannot wait. See, e,g., Brief for NACDL, et al. as Amici Curiae Supporting Defendant-Appellee, United States v. Raia, No. 20–1033 (3d Cir. Apr. 21, 2020) (arguing the 30-day waiting period is a non-jurisdictional claims-processing rule that can be waived by the court).

That said, many judges will find that administrative exhaustion is a mandatory prerequisite to the filing of a motion. For a discussion of this issue in two recent cases see United States v. Lugo, 2:19-cr-00056-JAW, District of Maine, April 10, 2020 and United v. Miamen, 18–130–1 WES and 18–142 WES, District of Rhode Island, April 17, 2020. So, if you can file the letter to the warden without compromising your health, do so first. If you feel like you cannot wait, have your lawyer request the warden release you and file the motion contemporaneously.

A word of caution about requesting compassionate release: make sure to have a plan for where you will live once you are released. The BOP will not release an inmate without housing. If you are planning on going home to live with family, for example, make sure your family knows that they will get a call from the BOP regarding the suitability of a placement in their home. Inmates with housing instability should plan for this problem as soon as possible. It can be difficult to obtain housing, like public housing, with certain federal convictions on your record. If you do not have a place to go upon release, you should work with your BOP case manager to plan for this issue as soon as possible.

About the Author

*Tim Zerillo is a criminal defense lawyer in Portland, Maine. He serves on the Board of Directors of the National Association of Criminal Defense Lawyers and is a Past President of the Maine Association of Criminal Defense Lawyers. Tim is the author of the book Defending Specific Crimes, published by James Publishing.

Notes

1. “How Severe Are Coronavirus Outbreaks Across the U.S.? Look Up Any Metro Area,” New York Times, by Josh Katz, Kevin Quealy and Margot Sanger-Katz, as updated April 16, 2020
2. Joseph A. Bick (2007). Infection Control in Jails and Prisons. Clinical Infectious Diseases 45(8):1047–1055, at https://doi.org/10.1086/521910.
3. https://www.fd.org/sites/default/files/covid19/barr_memo_caresact_apr3_2020.pdf
4. Ciaramella, C.J., Bureau of Prisons Reverses Coronavirus Home Confinement Policy, Reason: Free Minds and Free Markets, at https://reason.com/2020/04/21/bureau-of-prisons-reverses-coronavirus-home-confinement-policy/
5. See e.g. United States v. Asher Kataev, SDNY, 1:16-cr-00763-LGS Doc. No. 779, April 14, 2020, in which the Court found, and the Government did not contest, that a request for release to a warden made by the defendant’s rabbi was sufficient.