By Linda Dale Hoffa and David Rodkey

Law360 (March 24, 2020, 4:38 PM EDT )

Linda Dale Hoffa

David Rodkey

While federal and state courthouses throughout the country have either closed their doors or postponed hearings, trials, and appellate arguments until the spread of COVID-19 subsides, defense attorneys have quickly realized the devastating impact the pandemic will cause in prison populations and jumped into action.

Defense attorneys throughout the U.S. are brainstorming and sharing their ideas and work product on listservs, as well as filing pleadings and emergency petitions to advocate strongly for clients facing pretrial detention and sentencing.

They are also filing compassionate release petitions under the First Step Act for early release of clients who are already serving prison terms and are most at risk from COVID-19. 

Leading the way in this cause is the Women's White Collar Defense Association, as well as the federal public defender organizations and the National Association of Criminal Defense Lawyers.

But they are not alone in this fight. U.S. senators and representatives have written to U.S. Attorney General William Barr, as well as to the director of the Federal Bureau of Prisons and the U.S. Marshals Service, demanding that action be taken to address the serious threats posed by COVID-19 to the health and welfare of inmates in the U.S. government's care, as well as to the health and welfare of federal employees and their families.[1]

It is not yet known, what if any, responses have been received from these officials.

There are persuasive new arguments to be raised to help clients during this national crisis. No doubt more will be created and argued in the coming weeks. And these arguments can and should be raised at various stages throughout criminal proceedings — even for those clients already serving lengthy prison sentences.

Pretrial and Post-Conviction Bail

Arguments for nondetention for both pretrial and pending appeal are now strengthened by the unique risks posed in prison populations by the highly contagious coronavirus and the BOP's lack of preparation and planning to deal with this crisis.[2]

Pleadings filed have cited to the news reports of the high death rates from the virus in prison populations in Iran and China and to numerous news reports of how the virus is quickly spreading and presents insurmountable obstacles for containment in the U.S. prison population.[3]

To be most effective, you must evaluate your client's situation to see if there are serious underlying medical conditions that put him or her at greater risk to contract the virus. This includes age (over 60), a compromised immunity system, heart disease, lung disease and diabetes.[4] Excessive drinking is such a factor as it compromises the immune system and damages numerous components of the lung's defense system, increasing susceptibility to pneumonia and other respiratory infections.[5]

Consider raising cruel and unusual punishment under the Eighth Amendment to bolster your argument for release. Courts have acknowledged situations where environmental factors pose an unreasonable risk to an inmate's health and the reasoning of those cases apply with greater force to COVID-19.[6] It is important to remember that clients previously detained can receive conditional releases if their circumstances warrant reconsideration based on new facts in light of this national emergency. 

Further, with international travel restrictions in place and increasing on a daily basis, the ability for anyone to flee the country has been severely limited. In short, there is simply no reason to compound the burgeoning spread of COVID-19 by placing individuals in crowded detention facilities unless those individuals pose a direct threat to the health and safety of the community if allowed to remain outside of custody.

Pending Cases

Continuances until the crisis has resolved should be sought for clients released on bail and awaiting a guilty plea and/or voluntary surrender to a BOP facility. This is necessary not only for the safety and well-being of your client but also for those in the BOP system. Arguments for a continuance will be similar to those for pretrial nondetention.

For clients awaiting sentencing where it may be in the client's best interest to postpone sentencing, additional arguments for a continuance may include the inability to have witnesses available to testify or to have friends and family attend the sentencing hearing to show their love and support. 

In the event that a sentencing hearing occurs, advocate strongly for a variance in support of a noncustodial sentence (think house arrest) based on your client's particular risk factors for coronavirus and the ever-increasing threat the virus poses not only to your client but to those exposed to him (think not just other prisoners but also BOP employees and their families).

Community confinement in a halfway house is as unacceptable as a prison facility. Also consider as a basis for a variance if your client is employed in a life-sustaining business, such as food and drug supply production, or in the medical field, which is considered to be an essential service during this pandemic.

For those whose release does not pose an imminent threat to society (violent criminals), this argument will have the most persuasive power. Argue that BOP is unprepared to handle this threat.[7] And prosecutors' current arguments that prisoners are safer in custodial institutions is without scientific support.

Sentenced Prisoners and Compassionate Release

For clients who are currently incarcerated and not yet eligible for bail, compassionate release requests may also be available in certain situations. Currently, all sick or dying inmates in federal detention who have terminal or incurable and debilitating illnesses are eligible for compassionate release, provided they met certain factors as determined by BOP or the sentencing judge.

It is currently unclear whether COVID-19 might be a proper ground for inmate release, but given the way the statute is currently constructed, the illness appears to move far too rapidly to allow time for a compassionate release petition.

However, if an inmate is already in a weakened, debilitated or otherwise terminal state, the rapid spread of COVID-19 might provide a compelling reason for that inmate's release before contracting COVID-19, given the gravity of the harm that could occur if that inmate were to contract the disease.

Additionally, a little-used section of the compassionate release regulation allows for release in situations where the inmate is needed to care for a dependent child, spouse or registered domestic partner. Therefore, in the tragic situations where, for instance, COVID-19 may leave an inmate as the only viable option to provide care for a dependent child, spouse or registered domestic partner, compassionate release may provide an avenue to noncustodial detention.

Be advised that some special rules apply for compassionate release petitions. In order to file for a compassionate release, an inmate, either pro se or through counsel, must first send a letter to the warden's office explaining the grounds for the release. Then, only after that request is denied or after the passage of 30 days can the inmate move the sentencing court for release.[8]

Therefore, federal inmates who have other incurable underlying conditions that may make them especially susceptible to death as a result of contracting COVID-19 should send release requests to the warden of their facility immediately. Petitioning the court without first writing the warden will be immediately dismissed for failure to exhaust administrative remedies.

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Linda Dale Hoffa is a partner and chair of the white collar and government investigations group at Dilworth Paxson LLP. She is the former chief of the Criminal Division at the U.S. Attorney's Office in Philadelphia and former senior executive deputy attorney general at the Pennsylvania Attorney General's Office. 

David Rodkey is an associate at Dilworth Paxson.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] House Judiciary Chairman Jerrold Nadler wrote to Attorney General Barr on March 12, 2020 to inquire about BOP and the U.S. Marshals Service to seek answers regarding health and safety of those in the federal prison system: "With large numbers of people living in close proximity to one another, many of them elderly or living with chronic diseases, DOJ must act now to save lives. Accordingly, we urge you to put in place measures to ensure that both the flow of prisoners into federal facilities is slowed significantly and that prisoners who can and should be released are released forthwith. We cannot wait any longer to take action." 

U.S. Senator Kamala D. Harris on March 5, 2020 sent a letter to BOP Director Michael Carvajal requesting information about BOP's preparation for coronavirus in BOP facilities and private prisons, writing: "BOP is responding to the threat of coronavirus with extreme measures that both maintain current levels of incarceration and penalize the incarcerated community—including by suspending social and legal visitation, suspending inmate facility transfers, and potentially locking down institutions." 

[2] See U.S. v. Stephens , 2020 WL 1295155, __F. Supp. 3d __ (S.D.N.Y. Mar. 19, 2020) (granting release based on the "unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic" which places inmates, in particular, at "heightened risk").

[3] See Kimberly Kindy, Mark Berman, and Julie Tate, "Jail and prisons suspend visitation to keep coronavirus from spreading," L.A. Times, March 16, 2020; Danielle Ivory, "We Are Not a Hospital: A Prison Braces for the Coronavirus," N.Y. Times, March 17, 2020; Cassidy McDonald, "Federal prison workers say conflicting orders on coronavirus response is putting lives at risk," CBS News, March 19, 2020; Times Editorial Board, "Coronavirus makes jails and prisons potential death traps. That puts us all in danger," Los Angeles Times, March 18, 2020.

[4] Roni Caryn Rabin, "Coronavirus Threatens Americans with Underlying Conditions," N.Y. Times (last updated March 14, 2020).

[5] See NIH National Institute on Alcohol Abuse and Alcoholism, Alcohol alert Number 89 at https://pubs.niaaa.nih.gov/publications/AA89/AA89.htm.

[6] See Helling v. McKinney , 509 U.S. 25, 28 (1993) (InHelling, the Supreme Court found that the plaintiff stated "a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of [second hand smoke] that pose[d] an unreasonable risk of serious damage to his future health." Id.at 35. Other courts have also supported 8th amendment claims where environmental factors posed an unreasonable risk to an inmate's health, including exposure to 'infectious maladies such as hepatitis and venereal disease' caused by overcrowding, unsafe drinking water, and 'toxic or other substances." Allen v. Kramer , 2016 U.S. Dist. LEXIS 115024, 2016 WL 4613360, at *7 (E.D. Cal. Aug. 17, 2016) (quoting Helling, 509 U.S. at 33, 35.). Helling also has been applied to "contagious diseases caused by overcrowding conditions, Brown v. Mitchell , 327 F. Supp. 2d 615, 650 (E.D. Va. July 28, 2004); contaminated water, Carroll v. DeTella , 255 F.3d 470, 472 (7th Cir. 2001); compelled use of chemical toilets, Masonoff v. DuBois , 899 F. Supp. 782, 797 (D. Mass. Sep. 11, 1995), [and] paint toxins, Crawford v. Coughlin , 43 F. Supp. 2d 319, 325 (W.D.N.Y. 1999)." Allen, 2016 U.S. Dist. LEXIS 115024, 2016 WL 4613360, at *8.

[7] A troubling news report about BOP's lack of preparedness quotes a federal correctional officer, "the agency is in chaos."

[8] The most recent guidance from the BOP on filing a petition for compassionate release is available at this link: https://www.bop.gov/policy/progstat/5050_050_EN.pdf.

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