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Requests for Compassionate Release in the Era of COVID-19

Posted on: May 4th, 2020

By: Curt Graham

Correctional facilities across the country are facing unique challenges related to the COVID-19 pandemic. Some facilities have already reduced inmate populations in an effort to curb its effects. Additionally, courts are receiving an unprecedented number of requests for early release or modified sentences. A recent opinion from the United States District Court for the Eastern District of Kentucky examined an inmate’s request for a compassionate release due to coronavirus concerns.

In United States v. Cornett, No. 7:10-2-KKC, 2020 U.S. Dist. LEXIS 68878 (E.D. Ky. Apr. 20, 2020), an inmate filed an emergency motion for immediate release and argued his correctional institution was not taking adequate steps to protect prisoners from the virus. His motion was denied, as the Court found the inmate had not exhausted his administrative rights under the First Step Act of 2018. The First Step Act permits prisoners to file a motion for compassionate release on their own (as opposed to the Bureau of Prisons filing one on their behalf), but only if the prisoner has first “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or if 30 days have lapsed since the warden of the defendant’s facility received the defendant’s request to file a motion on his behalf, whichever is earlier.”). Finding the exhaustion requirements were jurisdictional, the Court rejected the argument that these requirements should be waived in light of the dangers posed by COVID-19.

The Cornett opinion emphasized that in these unsettling times, “the exhaustion requirement of the compassionate release statute is perhaps most important,” because the Bureau of Prisons (BOP) is better positioned than the courts to first assess issues such as a defendant’s health, the adequacy of the measures taken by a particular place of incarceration to address any health risks, the risk presented to the public by a defendant’s release, and the adequacy of a defendant’s release plan.” The Court also observed that the BOP has begun a review of all inmates who have COVID-19 risk factors to determine which inmates are suitable for home confinement.

Given the ongoing COVID-19 concerns, courts will undoubtedly be flooded with similar requests for early release. However, statutory exhaustion requirements may bar such requests before they are ever heard on their merits. 

FMG attorneys Wesley Jackson, Ashley Hobson and Curt Graham will be presenting a webinar on Wednesday, May 13, 2020 from 1:00 – 2:15 p.m. EST entitled “COVID-19 in Custody: Practical Tips and Liability Considerations.” They will be joined by Edward Sweeney of Sweeney Corrections Consulting. This webinar will offer an in-depth discussion of the CDC Guidance on Management of COVID-19 in Correctional and Detention Facilities and will address various legal considerations relating to COVID-19 in the correctional setting.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, protecting business interruption losses, and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at c[email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

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