We now know that coronavirus anywhere becomes coronavirus everywhere. So our prisons – combining crowded conditions and inadequate medical care – must be a community concern. We are helping families concerned about their loved ones in jail who are exposed to the virus. This update highlights recent and rapid developments under (1) The Bail Reform Act; (2) The First Step Act; and (3) The CARES Act.

Many non-violent individuals are held in jail even before their trials. Now, some may qualify for release under the Bail Reform Act. This Act allows the temporary release from federal custody, if necessary, to prepare the defense or for another compelling reason. Some federal courts have recently held that the COVID-19 crisis is a “compelling reason” for pretrial release, including:

Defendants who are already serving sentences in the Bureau of Prisons (“BOP”) face dire conditions. Last week, 5 prisoners died at just one federal prison called “Oakdale” north of Lake Charles, Louisiana. The First Step Act allows courts to grant “compassionate release” to a prisoner who is disabled, or terminally ill, or for other “extraordinary or compelling reasons.” This law took effect in December 2018 – and the early cases highlighted the inadequacy of medical care in prison before the coronavirus crisis. With coronavirus, the prisons are overwhelmed. Some courts have deemed COVID-19 an “extraordinary or compelling reason” to release some vulnerable prisoners, including:

Ordinarily, the prisoner must ask BOP to file a motion for compassionate release with his sentencing court before he files for himself, but some courts in the last week have held that requirement is unnecessary in these unique circumstances.

Finally, on March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), which addressed many issues including incarceration. Under the CARES Act, the Attorney General and the Director of the BOP have broadened authority to release inmates to home confinement in appropriate cases. However, before that authority takes full effect, the Attorney General must first find that “emergency conditions will materially affect the functioning of the [BOP].” On April 3, 2020, the Attorney General made that finding for the worst-hit prisons, where inmates are already dying.

We will continue to monitor and participate in these fast-changing developments. If you have questions, contact us, and we hope you are safe in these unusual times.