By Stewart Bishop

Law360 (April 16, 2020, 8:21 PM EDT ) With COVID-19 spreading through the nation's federal prisons and jails, inmates petitioning courts for early release or bail in response to the pandemic are running into an assortment of responses from the bench, leaving advocates in an uncertain legal landscape.

Prisoners, often those with medical conditions that leave them particularly vulnerable to grave health consequences if they contract the virus, have been flooding courts with motions for compassionate release as the number of confirmed cases of infection inside Federal Bureau of Prisons facilities rises by the day.

As of Thursday, the BOP said 473 federal inmates had tested positive for the novel coronavirus ⁠— up from 352 at the beginning of the week ⁠— in addition to 279 BOP staff. However, advocates believe the actual rate of infection is far higher, pointing to a lack of widespread testing. According to the bureau, 18 federal inmates have died due to the virus.

While U.S. Attorney General William Barr has directed the BOP to increase the use of the agency's own authority to release inmates to home confinement in response to COVID-19, more and more inmates are not waiting on what can be a lengthy bureaucratic process, opting to take their cases to court and move for compassionate release.

However, how a particular judge will rule has been difficult to predict, said Matthew Adams of Fox Rothschild LLP, whose firm has been working on coronavirus-related prisoner cases and tracking them nationally.

"There's sort of a patchwork right now," Adams told Law360. "Unlike many paradigms in traditional federal practice where there's a lot of consistency across even one particular district, there's not a lot of consistency, and much of it has been an ad hoc analysis."

Jonathan M. Smith, executive director of the Washington Lawyers' Committee for Civil Rights and Urban Affairs who is working on a pro bono effort through the Compassionate Release Clearinghouse to provide legal counsel to the most vulnerable inmates, said there have been some very good decisions recently in inmates' favor, but rulings have been far from uniform.

"It's uneven around the country. Some judges have been much more sympathetic than others," Smith said. "There's so much happening right now, it's kind of hard to catalog it all."

Complicating matters, prosecutors have been opposing most cases of inmates seeking compassionate release due to coronavirus concerns. In many such cases, the government contends that inmates haven't exhausted their administrative remedies of taking a case internally to the BOP or waiting the required 30 days after submitting a request to the warden of their facility before taking their case to federal court.

Many judges have taken the view that the exhaustion requirement automatically bars them from considering the merits of the claim of an inmate who has not waited the 30 days to bring their motion for compassionate release.

Defense attorneys, with some success, have attacked the exhaustion requirement as futile in the time of an emergency.

Smith said that while courts have been concerned about COVID-19 and responsive, they have been split across the country about whether to waive the exhaustion requirement.

"Given the fact that the Bureau of Prisons is taking a lot of time to respond to people's petitions and that there's a sense of urgency here, I think there are pretty strong arguments that courts can waive the exhaustion requirement," Smith said.

Inmates faced a setback on this front recently at the Third Circuit, which held that a onetime New Jersey city council candidate serving prison time for trying to bribe voters can't get out of jail because of the risk of contracting COVID-19. A three-judge panel acknowledged the risk in its precedential decision but denied Francis Raia's release bid because he hadn't yet exhausted his administrative remedies for compassionate release through the BOP.

In New York, at the heart of the pandemic, there is a growing split among judges as to how to handle the question of whether the exhaustion requirement can be waived.

For example, U.S. District Judge Alison J. Nathan held Monday that she lacked the authority to waive the requirement and release a New Jersey pastor convicted for his role in an unlawful bitcoin exchange scheme, though she made clear she would release him when the statutory 30-day requirement was met.

In another case, U.S. District Judge Jed S. Rakoff held that the requirement is waivable, but nevertheless declined to order the release of convicted money launderer Hugh Brian Haney after finding no "extraordinary and compelling" reason to do so.

Two inmates had better luck before U.S. District Judge Analisa Torres, who on April 3 ordered that 75-year-old financier Morris Zukerman — who had about a year left in his sentence for tax evasion — serve out the rest of his term on home confinement in light of his health conditions, including diabetes and hypertension, which place him at a high risk of complications and death if he were to be infected with COVID-19.

Judge Torres held that the exhaustion requirement can be waived in light of the "extraordinary threat" posed to Zukerman by the pandemic.

Wilson Perez, who was convicted of kidnapping and conspiracy, also was granted a compassionate release by Judge Torres due to his medical issues.

Inmates in pretrial detention or awaiting sentencing appear to have had somewhat greater success in getting released due to coronavirus concerns. Another area of some success for the defense bar is getting judges to postpone self-surrender dates in light of the crisis.

Adams said he's found courts to be receptive to coronavirus-related bail arguments, especially in white collar and nonviolent cases, and even in cases where a judge might otherwise order detention.

"I've experienced a willingness of the courts to not only move up prescheduled bail reviews because of the crisis, but to release detainees pending some other further action like trial, in the interest of public safety," he said.

Barr told federal prosecutors in a memorandum last week to take the pandemic into account when deciding whether to seek pretrial detention. While the attorney general stressed that public safety should still be prosecutors' highest priority, he said they should consider the outbreak as a factor, especially in cases where the defendant presents little risk of flight or harm to the community or in cases where the defendant is particularly susceptible to COVID-19.

Shon Hopwood, an associate professor of law at Georgetown University Law Center, said he's been encouraged by the recent number of judges that are willing to grant release in a variety of cases, even those involving people who have committed violent offenses but have a good record of rehabilitation and who are particularly vulnerable to the threat posed by COVID-19.

"I think they're seeing that the Department of Justice's and the Bureau of Prisons' response at this point has been completely inadequate," Hopwood said. "Even in the prisons where they've experienced a huge outbreak, they're just not releasing enough people so the people in prisons can social distance."

Prosecutors have pushed back against allegations that the BOP is failing to deal with the risks posed by the pandemic, pointing to the bureau's multiphase plan to mitigate the spread of COVID-19 and ensure the welfare of the prison population. For its part, the BOP said that since Barr's directive, it had placed an additional 1,198 inmates on home confinement as of Thursday.

Going forward, experts say to expect more COVID-19 litigation aimed at getting at-risk inmates released, above and beyond compassionate release bids.

Last week, the American Civil Liberties Union brought a class action on behalf of inmates at Oakdale Federal Detention Centers in Oakdale, Louisiana, that seeks the release of people who are particularly at risk due to age or underlying medical conditions.

In another case filed in late March, a proposed class of medically vulnerable inmates in Brooklyn's Metropolitan Detention Center sued for their release, claiming the prison has violated their Eighth Amendment protection against cruel and unusual punishment by failing to enact basic COVID-19 safeguards.

Rachel Barkow, a professor of law and faculty director at New York University School of Law's Center on the Administration of Criminal Law, told Law360 that these cases are likely just the beginning.

"I think the next round of things they're going to be facing are these constitutional challenges to what's happening inside these facilities," Barkow said. "Because they're really not providing sufficient medical care and healthy conditions for the people who reside there."

--Editing by Aaron Pelc and Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.