Expediting a Compassionate Release Motion
Introduction
As the COVID-19 pandemic has spread throughout the prison system, more and more inmates are filing for compassionate release as an alternative to relief under the CARES Act. One of the most notable benefits of filing for compassionate release is that the ultimate decision is left up to the court rather than the Bureau of Prisons; while both the CARES Act and compassionate release require inmates to write to the wardens of their institutions to start, a person seeking compassionate release can file a motion with the court if the warden denies this request – an option not available to CARES Act seekers.
Under the compassionate release statute as it it relates to COVID-19, the seeker must prove three primary assertions:
A.) Extraordinary and compelling circumstances warrant a release from prison. See 18 USC 3582(c)(1)(A)
B.) The incarcerated person is not a danger to the safety of any other person or to the community. See USSG 1B1.13
C.) The sentencing factors under 3553(a) warrant a reduction in sentence
While all compassionate release motions must meet these guidelines, COVID-specific motions must argue these points with some new considerations in order to be considered a strong motion. This begs the question: what makes for a strong compassionate release motion? While nothing can guarantee relief, successful motions for compassionate release include five key factors.
One thing that is becoming more and more evident is that these things need to be completely assembled before you file and attached to your initial filing as exhibits. In several of our cases, the court has not mentioned time for us to reply to the government's response in the court's briefing schedule or other similar rulings. So anything that you need should be assembled before you file. I recommend using the time while you are reaching out to the warden to be a time for to you seek these documents.
A Safety Plan.
Unlike traditional compassionate release motions, a motion relating to COVID-19 concerns must address public health in addition to personal health. In other words, how will you ensure that a release from prison does increase you or anyone else’s chances of contracting COVID-19? One way to address this is by providing an affidavit by a loved one outlining how they can keep you safe: how they are able to pick you up from prison if you are released: do they have a car? How far away are they? The motion should also include an affidavit by a loved one with whom you will be staying after release, ensuring that you have a place to stay that puts some social distance between you and others in the house and that they have access to basic PPE (masks, gloves, soap, etc.,) that you will be able to use. Equally important is to include a name and phone number for the loved ones providing affidavits so that their claims are verifiable. We have discussed cases where the courts have scheduled either video calls or evidentiary hearings to flesh out claims that others will be able to take care of the incarcerated person.
A Release Plan.
While a release plan is essential in any compassionate release motion, it is essential for any COVID-related motions. The release plan is similar to the safety plan in that you must outline where you will be staying what you intend to do, however, it differs in that it directly addresses the second essential assertion required for a compassionate release: proof that you would not be a danger to others if released. In addition to information on what you plan to do, this section is strengthened exponentially by support letters from friends and family that outline how your loved ones intend to support you after release. While letters of support frequently include testimony to your rehabilitation or strength of character, it is equally important that these letters give concrete examples of ways in which your community will help you avoid recidivism and continue rehabilitation. Can they offer you a place to stay? A job? Moral support? All of this helps to reinforce your motion by demonstrating community “safeguards” that will help you keep on the right path after release. As always, full names and contact information for people writing these letters for you should be included.
Personal Statement.
Perhaps the most related to COVID-19 is the entry of a personal statement through an affidavit that you personally write. Many courts have denied compassionate release motions because the Bureau of Prisons have provided evidence that they have a plan to keep inmates safe and healthy, therefore release is not warranted. Information about the reality of your institution’s conditions and handling of the virus is essential to counteract this, as many inmates have indicated to us that the BOP’s plans to keep them safe are not realistically implemented on the ground. For example: while the BOP may report readily available testing, inmates from some institutions have reported that they are not quarantined until a positive test has been confirmed. All of this should be included in your personal statement. Do you have adequate access to soap? Masks? How is testing being handled in your institution? What about physical distancing? What is happening between when a person is tested and when results come back? Are they being placed back in with the population or is something else happening? A declaration is important as to these things.
BOP Records.
To prove that your post-incarceration conduct involves evidence of rehabilitation, numerous documents from the BOP should be included: Your ISDS Report, IRP, Team Sheet, Individual Reentry Plan, certificates of any courses or leadership positions, and your PATTERN score. These things help to demonstrate the third essential assertion that must be proven in a compassionate release case.
Medical Records.
Perhaps most pertinent to a COVID-19 compassionate release case is your medical records from both inside and outside the prison. The court will use these to verify all claims within the motion regarding your vulnerability to COVID-19, single handedly providing evidence for extraordinary and compelling circumstances – the first essential assertion for compassionate release. These records should all be obtained before you file with the court. In most cases, an inmate can request their BOP medical records themselves. This is the quickest route. If you must request these records through your lawyer, they can take several weeks as an ID Verification and a FOIA request must be completed first. If, for some reason, you have trouble obtaining your records from the BOP, this must too be documented: the names, dates, and positions of those who denied you access to your records should be noted for your court filings.
These are all things that you can prepare while waiting to file with the court. The process for requesting compassionate release requires you to first write to the warden of your institution and wait 30 days for a response before filing with the court. Attaining this information and readying it for filing can expedite your process whenever you can file with the court.
In the same vein, we suggest that you prepare your administrative remedies (BP-9, BP-10, and BP-11) in advance so that they can be filed immediately whenever you receive a response from your warden. If you do not receive a response from your warden within 30 days, some courts have ruled that you can move on to filing a motion without completing the administrative remedies. We suggest that, even if you choose this route, you pursue your administrative remedies while waiting on a ruling from the court.
Like I have said previously, the day after you are denied on the BP9 you should send in the BP10. The day after the BP10 is denied, you should send in the BP11. The day after you are denied on the BP11 you should get ready to file with the court.
Several courts have dismissed motions because the administrative remedies were not completed, however, these cases were dismissed without prejudice, meaning that, once the administrative remedies are completed, you would be able to file with the court again. We suggest that you work on your administrative remedies even if you file with the court immediately so that, should your case be dismissed, you will be able to file again fairly quickly.
Compassionate Release