Our colleagues Eric Moran and Elena M. Quattrone, attorneys at Epstein Becker Green, co-authored an article in The New York Law Journal, titled “Federal Courts Set Out Preconditions for Prisoner Release Because of COVID-19 Risk” (registration required).

Following is an excerpt:

As the COVID-19 pandemic continues its spread throughout the nation, federal prisons are experiencing an unprecedented crisis due to its inability to implement social distancing, resulting in exponential increases in COVID-19 cases among inmates and prison staff. On April 14, the federal Bureau of Prisons (BOP) released troubling data: In just one week, its 122 institutions saw a staggering increase in confirmed positive cases, including 446 inmates and 248 staff members, with 14 federal inmate COVID-19-related deaths. (https://www.bop.gov/coronavirus/ (April 15, 2020)).

With the pandemic raging, attorneys representing non-violent defendants in the federal system confront a vexing question: Where does traditional communal incarceration stand in the face of a pandemic that demands social distancing?

For non-violent offenders, the First Step Act of 2018 (FSA) could provide an avenue for vulnerable defendants facing, or serving, prison time to seek a sentence reduction based on individual health concerns. The FSA authorizes a sentencing judge to grant a motion by the BOP, or a defendant who has exhausted administrative remedies, for compassionate release—reducing a term of imprisonment or imposing a non-custodial sentence—if “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. §3582(c)(1)(A)(i).

But pro forma applications for release under the FSA are unlikely to succeed. Counsel who invoke the FSA citing COVID-19 concerns must take care to overcome all necessary procedural hurdles, and articulate something more than the “mere presence” of the pandemic to obtain relief. A recent decision from the Third Circuit, developments in the Chunn litigation in the Eastern District of New York, and the Department of Justice’s new policies on applying the FSA offer important guidance for attorneys looking to reduce their clients’ sentences in light of the COVID-19 pandemic. …

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