December 11, 2020 Articles

Federal Compassionate Release in the Era of COVID-19: Practice Tips

Attorneys should press district courts to expeditiously grant compassionate release to COVID-19-vulnerable defendants.

By Robin Waters
Attorneys should use their creativity in developing arguments for compassionate release.

Attorneys should use their creativity in developing arguments for compassionate release.

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Significant outbreaks of COVID-19 in the Federal Bureau of Prisons (BOP)—where at least 128 federal inmates have already died from the virus and social distancing is next to impossible—have greatly increased both the urgency and volume of federal inmates seeking compassionate release. When determining whether and when to file a motion for federal compassionate release, attorneys should familiarize themselves with the First Step Act of 2018 (FSA), where Congress amended the compassionate release statute to allow for increased access to relief. 18 U.S.C. § 3582(c). The FSA, taken together with the influx of recent decisions dispensing with both the statute’s exhaustion requirement and U.S. Sentencing Guidelines (USSG) policy statements, reveals that attorneys can and should press district courts to exercise their authority to expeditiously grant compassionate release to defendants who are particularly vulnerable to the serious health complications that could arise from contracting COVID-19.


A district court can reduce a defendant’s sentence, allowing for his or her release when “extraordinary and compelling reasons warrant such a reduction”; or when a defendant with a mandatory life sentence reaches at least 70 years of age, has served at least 30 years, and is not a danger to the safety of the community. 18 U.S.C. § 3582(c)(1)(A)(i)–(ii).

The FSA altered the language of 18 U.S.C. § 3582(c)(1)(A), which previously gave the director of the BOP the exclusive authority to move the district court to reduce a defendant’s sentence. Under that poorly administered system, very few defendants were granted compassionate release—on average, just 24 people per year. See U.S. Dep’t of Justice, The Federal Bureau of Prisons’ Compassionate Release Program at i–1 (Apr. 2013) (“[T]he existing BOP compassionate release program has been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.”). Now, under the amended statute, if the BOP denies a defendant’s request for a sentence reduction, the defendant may move the district court for release, provided that he has exhausted the administrative review of the BOP’s denial of his request or 30 days have passed since his request was made, whichever is earlier. The FSA provides that such relief must be consistent with the U.S. Sentencing Commission’s policy statements.

Tip 1: Do Not Delay

Courts are waiving the FSA’s exhaustion requirement, so do not delay.

District courts have acknowledged that the deadly and rapid-spreading nature of COVID-19 requires prompt judicial adjudication of compassionate release motions. In United States v. Haney, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York held that the FSA’s 30-day exhaustion requirement was not jurisdictional and could be waived. 454 F. Supp. 3d 316, 319–22 (S.D.N.Y. 2020). In reaching this conclusion, Rakoff emphasized that

in the extraordinary circumstances now faced by prisoners as a result of the COVID-19 virus and its capacity to spread in swift and deadly fashion, the objective of meaningful and prompt judicial resolution is clearly best served by permitting [the defendant] to seek relief before the 30-day period has elapsed.

Id. at 321. Many district courts—though not all—have followed suit, holding that the FSA “does not require the Court to wait to consider a compassionate release request if there is a credible claim of serious and imminent harm from this pandemic.” United States v. Smith, 2020 U.S. Dist. LEXIS 98878, at *7–9 (C.D. Ill. June 5, 2020) (collecting cases).

For these reasons, attorneys should move expeditiously and on an emergency basis if necessary in bringing compassionate release motions on behalf of defendants vulnerable to COVID-19.

Tip 2: Be Creative

Courts have held that USSG § 1B1.13 applies only to BOP-initiated motions, so be creative.

The FSA provides that the district court’s grant of compassionate release must also be consistent with U.S. Sentencing Commission policy statements. The USSG policy statement on compassionate release, section 1B1.13, describes four situations constituting an “extraordinary and compelling” reason to grant release:

(1)   Medical Condition of the Defendant: terminal illness; serious physical or mental condition; serious functional or cognitive impairment; or “deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover”
(2)   Age of the Defendant: at least 65 years old; “experiencing a serious deterioration in physical or mental health because of the aging process”; and “served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less”
(3)   Family Circumstances
(4)   Other Reasons: “extraordinary and compelling reasons other than, or in combination with, the [above] reasons”

However, section 1B1.13 repeatedly refers to the BOP’s exclusive authority to bring compassionate release motions, despite the fact that under the FSA defendants may bring their own motions. Accordingly, many courts, including the Second Circuit Court of Appeals in United States v. Brooker, 2020 U.S. App. LEXIS 30605 (2d. Cir. Sept. 25, 2020), have held that section 1B1.13 applies only to motions made by the BOP. Therefore, attorneys should not rely solely on section 1B1.13 in determining whether to move for release.

In particular, attorneys should closely analyze whether their client’s medical history or condition creates an increased risk of complications from COVID-19 by reviewing the Centers for Disease Control and Prevention’s (CDC’s) COVID-19 guidelines. District courts have repeatedly held that such risks can constitute an extraordinary and compelling reason warranting compassionate release—regardless of the defendant’s age, current medical condition, or percent of completion of the original sentence as set forth in section 1B1.13.

In short, attorneys should use their creativity in developing arguments for compassionate release beyond the rubric set forth in section 1B1.13 and in the pre-FSA case law.

Robin Waters is an associate with Loeb & Loeb LLP in Chicago, Illinois.

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