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Compassionate Release During the COVID-19 Pandemic in Minnesota

Compassionate Release During the COVID-19 Pandemic in Minnesota

Prisons pose a special danger for the transmission of the highly contagious and potentially lethal COVID-19 illness. To mitigate the spread of COVID-19 in the facilities, prisons have indefinitely suspended social visits, implemented “Stay with Unit” plans, and widely distributed masks and hand sanitizer to guards and inmates.[1] However, social distancing, which is the best way to reduce the spread of COVID-19,[2] is essentially impossible in prison. Guards and jail staff, who travel in and out of the facilities daily, have close contact with inmates, and inmates intermingle with each other at the dining hall, educational programming, or facility industry or work opportunities. The unavoidable close living and daily contact with others have caused many experts and activists to criticize the efforts by federal and state prisons to prevent or mitigate the very real and dangerous threat that a potential COVID-19 outbreak poses.[3] Coronavirus hot spots have popped up in dozens of jails and prisons across the United States.[4] As of May 6, 2020, there have been at least 20,119 cases of coronavirus reported among prisoners.[5] However, testing for coronavirus in prisons has been incredibly limited, and the number of positives cases is likely much higher.[6]

For older inmates, inmates who are immunocompromised, and inmates with pre-existing health conditions like asthma, lung disease, diabetes, heart conditions, kidney disease, and/or liver disease, the prisons’ unique susceptibility to COVID-19 outbreaks and their continued incarceration inside these facilities are putting their lives at risk. As of May 6, 2020, 304 prisoners have died from COVID-19.[7] The only way to protect incarcerated people with high-risk health factors from COVID-19, is to release these vulnerable individuals to home confinement. Whether the inmate is in a state facility or a federal facility determines the process that they may pursue release due to their higher risk of serious health harm from COVID-19.

MINNESOTA DEPARTMENT OF CORRECTIONS CONDITIONAL MEDICAL RELEASE

Prisoners serving time in any Minnesota Department of Corrections prison (Faribault, Lino Lakes, Oak Park Heights, Red Wing, Rush City, Shakopee, St. Cloud, Stillwater, Togo, Willow River, or Moose Lake) may apply for early supervised release. Under Minn. Stat. § 244.05, subd. 8, “the commissioner may order that any offender be placed on conditional medical release before the offender's scheduled supervised release date or target release date if the offender suffers from a grave illness or medical condition andthe release poses no threat to the public.” To accommodate specific COVID-19 related requests, the DOC has created a special process through which adult inmates who have serious medical conditions and are at higher risk of grave harm from COVID-19 can apply for conditional medical release.

An inmate may apply to the commissioner by submitting an application to the conditional medical release process contact with the following information:

  1. Description of the inmates serious medical condition(s);
  2. Identification of one or more specific residences or placements where the inmate knows he/she can live if released, including addresses and, if a private residence, the name and age of each person living there;
  3. Whether the inmate is eligible for veteran’s benefits or other state or federal healthcare coverage;
  4. Explanation of why the inmate believe he/she poses no threat to the public:
  5. Brief description of the inmate’s release goals;
  6. Identification and contact information for at least two people who will serve as the inmate’s support network if released.

The DOC will determine eligibility based on two main criteria: (1) does the inmate have a medical condition that puts them at a higher risk of grave harm from COVID-19; and (2) does the release of the inmate pose a threat to the public. Based on the information provided in the application, the DOC will review both the inmate’s medical eligibility and the public safety eligibility before approving or denying the application. If an application is initially approved, the DOC will then verify the inmate’s suitable housing and access to medical coverage before releasing the inmate.

The inmate’s medical eligibility is reviewed by medical professionals who are assessing whether the applying inmate’s medical conditions put them at a higher risk of grave harm if they were to contract COVID-19. Though the DOC has not provided a list of medical conditions or heightened risk factors that it considers sufficient to meet the medical eligibility requirement, CDC guidelines indicate that people with asthma, chronic kidney disease, chronic lung disease, diabetes, hemoglobin disorders, liver disease, serious heart conditions, and severe obesity are all risk factors.[8] Additionally, people who are immunocompromised or are age 65 years and older are also at greater risk.[9] Therefore, it is likely that if the inmate has one or more of the CDC’s listed risk factors, they may meet the medical eligibility requirement.

The DOC’s public safety review process and considered factors are less clear simply stating it “involves looking at a number of different safety factors that contribute to risk to community safety, such as criminal and disciplinary history, as well as a number of other factors.”[10]

TWO AVENUES FOR POSSIBLE RELEASE FOR FEDERAL PRISONERS DURING

COVID-19

Inmates in federal prisons fall under the jurisdiction of the Federal Bureau of Prisons. There are two ways federal inmates are securing release during the COVID-19 crisis: (1) Home Release under the CARES ACT and (2) compassionate release.

CARES Act

Under section 12003(b)(2) of the CARES Act, “if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement. . . .”[11] The CARES Act authorizes and has prompted the BOP to begin immediately reviewing all inmates who have COVID-19 risk factors. The CARES Act only gives the BOP authority to approve prisoners for home release; the Courts do not have authority to grant prisoners’ motion for home release under the CARES Act.

Compassionate Release Under the First Step Act

In addition to the CARES Act, prisoners may be successful obtaining compassionate release under the First Step Act of 2018. Prior to the First Step Act, a prisoner would only be considered for compassionate release if the BOP brought its own motion to the court for compassionate release of the prisoner. However, even though a prisoner may otherwise meet compassionate release criteria, the BOP would often refuse to file a motion. The prisoner could not appeal the BOP’s decision to not file a motion. If the prisoner attempted to file their own motion, the court was prevented by statute from even considering it on its merits. Unsurprisingly, compassionate release was extremely rare prior to the enactment of the First Step Act in 2018.

The First Step Act gave prisoners the right to file their own motions for compassionate release.[12] However, prisoners MUST “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf” or wait for 30 days to lapse from the day the warden receives a request from the prisoner, whichever is earlier.[13] If the prisoner does not first exhaust the administrative process, the court likely will not consider their motion for compassionate release on the merits.[14]

Our team of knowledgeable criminal defense attorneys are tracking developments in the law regarding compassionate release, conditional medical release, and expedited home release. If you have a loved one currently incarcerated in either a state or federal prison who has a medical condition or is over 65, call today to speak with an attorney.

 

[1] Updates for Inmate Families, Minnesota Department of Corrections, https://mn.gov/doc/about/covid-19-updates/updates-for-inmate-families/ (Last visited 5/12/20).

[2] Coronavirus Disease 2019 (COVID-2019), Social Distancing, CDC, (May 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.

[3] Jake Harper, Crowded Prisons Are Festering ‘Petri Dishes’ For Coronavirus, Observers Warn, (May 1, 2020) https://www.npr.org/sections/health-shots/2020/05/01/848702784/crowded-prisons-are-festering-petri-dishes-for-coronavirus-observers-warn.

[4] News Service of Florida, Eight Florida Prisons Are Hot Spots for COVID-19, Tampa Bay Times, (May 12, 2020) https://www.tampabay.com/florida-politics/buzz/2020/05/12/eight-florida-prisons-are-hot-spots-for-covid-19/; Timothy Williams & Danielle Ivory, Chicago’s Jail is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. Times, (April 23, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html.

[5] The Marshall Project, A State-by-State Look at Coronavirus in Prisons, (Updated May, 8, 2020, 4:00 P.M.), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.

[6] Michael Balsamo, Over 70% of Tested Inmates in Federal Prisons have COVID-19, (April 29, 2020), https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f (“[E]ven though officials have stressed infection and death rates inside prisons are lower compared with outside, new figures provided by the Bureau of Prisons show that out of 2,700 tests systemwide, nearly 2,000 have come back positive, strongly suggesting there are far more COVID-19 cases left uncovered.”).

[7] The Marshall Project, A State-by-State Look at Coronavirus in Prisons, (Updated May, 8, 2020, 4:00 P.M.), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.

[8] Coronavirus Disease 2019 (COVID-2019), Groups at Higher Risk for Severe Illness, CDC (May 12, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html.

[9] Id.

[10] Covid-19 Conditional Medical Release Process, Minnesota Department of Corrections, https://mn.gov/doc/community-supervision/covid-19-conditional-medical-release-process/ (Last visited 5/14/20).

[11] Coronavirus Aid, Relief, and Economic Security Act, PL 116- 136, March 27, 2020, 134 Stat 281

[12] 18 U.S.C. sec. 3582(c)(1)(A)(i).

[13] Id.

[14] While some federal courts have found exceptions to the administrative exhaustion requirement, no courts in 8th Circuit (which the District of Minnesota sits) have considered a motion for compassionate release on the merits where the defendant has not exhausted the administrative process or 30 days had not elapsed from the day the warden received the defendant’s request. See, e.g., United States v. Bergren, No. 00-cr-375 (DWF/RLE), 2020 WL 1910585, at *1 (D. Minn. Apr. 20, 2020) (denying motion for compassionate release due to COVID-19 for failure to exhaust and on the merits); United States v. Jenkins, 4:15-CR-3079, 2020 WL 1872568, at *1 (D. Neb. Apr. 14, 2020) ("Simply put, the Court cannot consider a motion for compassionate release that is based on evidence or arguments that weren't presented to the Bureau of Prisons first."); United States v. Annis, 16-cr-1951 (JRT/KMM), 2020 WL 1812421, at *2 (D. Minn. Apr. 9, 2020) (finding the court had no authority to grant compassionate release due to COVID-19 pursuant to 18 U.S.C. § 3582(c)(1)(A) because the defendant had not exhausted his administrative remedies); United States v. James, No. 15-CR-255 (SRN), 2020 WL 1922568, at *3 (D. Minn. Apr. 21, 2020).

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