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 How Did the Pandemic Influence Release Dates from Federal Prison? 

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Michael Santos

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Extraordinary circumstances lead to extraordinary results. In March of 2020, Congress acted in response to the outbreak of the Coronavirus pandemic by passing the CARES Act. This emergency legislation provided assistance and aid to all Americans in the fight against the spread of the novel COVID-19 virus. Fifteen months before, the President had signed into law a revolutionary federal prison reform bill. The First Step Act codified a groundbreaking and innovative approach and changed the way the federal prison system treated incarceration and the incarcerated.

The First Step Act empowered a new perspective in the Bureau of Prisons. In the past, the training of prison staff focused on and reinforced a Bureau of Prison policy eliminating prisoner access to any dynamic factors which might result in a prisoner’s transition back into society in a quicker time frame than their given sentences. The passage of the First Step Act signaled an end to the prevailing practice of prison administrators to deter, interfere with and deny attempts by an inmate to shorten their sentence. The enactment of this novel legislation repealed the ingrained attitude of the Bureau of Prison to mollify an inmate’s earnest attempt at improvement with obsequious denials. The First Step Act proposed a system allowing for a motivated individuals to actively demonstrate positive intent to reform and to earn time off against their sentence. At the time of the pandemic, the Bureau of Prisons was still wrestling with the means and manner to actualize and implement these reforms.

The inherent nature of imprisonment makes prison a potent vector for the spread of a disease like COVID-19. Security requirements require constant vigilance entailing physical contact between correctional officers and inmates. Inmate housing is cramped, crowded, and lacks abundant and efficient sanitary features and facilities. Cleaning supplies are sparse and diluted. The specific measures recommended in the general public’s battle with COVID-19, i.e., the use of masks and social distancing are impossible to carry out in a prison setting. Prisons are the perfect breeding grounds for a societal scourge like COVID-19. Correctional officers and prison administrators are not only at a greater risk of infection due to their work environment, but they also become a means to transmit the virus back to their family, friends, and society in general. This threat to public health and the realization immediate action was required set into motion events changing the very nature of the American penal system.

Concurrent with the enactment of the CARES Act of 2020, the United States Attorney General issued two memoranda to the Director of the Bureau of Prisons on the implementation of the provisions of the CARES Act. The Attorney General urged Bureau of Prison administrators to utilize the provisions of the CARES Act in the fight against the Coronavirus pandemic in federal institutions. The Attorney General recommended non-violent inmates susceptible to infections be released to home confinement. The Bureau of Prisons now had a mandate to release non-violent inmates in the federal prison system to home confinement. Thus, the application of the CARES Act now leads to the realization and exercise of the new goal of the First Step Act by engendering the Bureau of Prisons to provide an early release to federal inmates.

Under the Cares Act, the criteria for home confinement require a multitude of factors to be considered. The factors are to be considered in totality, with certain qualifying factors being mandatory. The qualifying conditions require the inmate’s primary offense not involve a sex offense, a violent offense, or a terrorism-related offense. The inmate needs both a security level and a Pattern recidivism risk score of Low or Minimum. The inmate must show they have not engaged in violent or gang-related activities during their time of incarceration and do not have a current detainer on their record.

Additional criteria to be considered are evidence of any disciplinary history in the past 12 months. If the incident report is a low-level 300 or 400 series incident, it does not automatically disqualify the inmate. In the case of a low-level incident report, the Warden must decide the inmate’s placement in home confinement does not create an undue risk to the community.

For the approval of a home confinement request, the inmate must provide a viable release plan. This includes proof of a stable home environment at the location where the inmate seeks confinement. Stability entails both financial and emotional elements ensuring the place of residence will be available during the entire period of home confinement. The inmate will be required to identify the type of residence. The list of individuals and contact phone numbers with whom the inmate will be living, as well as any health conditions of the individuals in the residence.

If the inmate has completed fifty percent of their sentence or they have served twenty-five percent of their sentence and have less than 18 months remaining on their sentence this is a significant factor in being considered for home confinement.

The most compelling element of using the CARES Act is unlike other administrative remedies available to a federal prisoner. Until the CARES Act, any administrative remedy sought by a federal prisoner requires the petitioner to exhaust all the Bureau of Prison administrative remedies available before being able to file a cause of action in Federal Court. The CARES Act circumvented this “must file all available administrative remedy requirements.” Under the CARES Act, an inmate only needed to file an initial request to the Warden. The Warden has thirty days to respond. If the Warden denies or fails to respond within thirty days, the inmate can immediately file a case pro se in the Federal District Court in which they were sentenced.

Under the CARES Act, a reduction in sentence or placement in home confinement requires showing an extraordinary and compelling circumstance. The coronavirus pandemic satisfies this factor as the lack of medical care in prison facilities makes inmates more susceptible to contracting COVID-19 and increases the risk of fatal consequences from contracting the disease. As the emergency nature of the Coronavirus pandemic wanes, the need to show an extraordinary and compelling circumstance will need to be derived from other types of conditions. An inmate with a severe medical condition involving chronic medical morbidities such as hypertension, high cholesterol, obesity, coronary vascular disease, or diabetes would qualify for compassionate release or home confinement.

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