Coronavirus and Federal Inmates
April 2, 2020
While much has been written lately about the effects of the COVID-19 or “coronavirus” on society, there has been little focus on what the virus will mean to the federal inmate population and the federal criminal laws governing their incarceration.
One does not need to be an astrologer to predict that the coronavirus will undoubtedly shape society for decades to come, including in ways completely unimaginable.
These changes are also sure to impact the federal inmate population. With the virus spreading through society at a rapid rate, any relief made possible to the federal inmate population will likely come through the First Step Act.
The First Step Act
Within the last several years there has been a sea change in thinking regarding our Nation’s criminal justice system. Many people started to question a system that, per capita, imprisons more of its citizens than any other developed nation.
In fact, the United States has the highest prison population in the world. Per capita, the United States imprisons more people than Iran, North Korea, China or Russia. Does our country have more criminals than those countries or do we simply incarcerate too many people?
To be sure, most people when asked would agree that people that commit violent crimes or major financial crimes should face prison. And frankly, while most people might agree that people that commit crimes should face some term of incarceration, many would question the length of that incarceration.
Financial and Societal Impacts
The financial and societal impact of lengthy periods of incarceration, especially where federal judges are required to impose certain mandatory minimums sentences, is what has drawn the scrutiny of people from all political spectrums in the last decade.
According to the Federal Bureau of Prisons, in fiscal year 2017 it cost on average approximately $36,000 per year to detain an inmate in prison.
Reacting to the growing debate about prison terms, the United States Congress passed and President Donald J. Trump signed into law legislation in 2018 referred to by shorthand as the “First Step Act.” The First Step Act stands for “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person.”
The purpose of the First Step Act is to reform prisons and the sentencing process that places people into prisons in the first place. More specifically, the First Step Act, among other things, provides federal judges greater discretion in imposing mandatory minimum sentences, provides inmates the opportunity to earn an additional one week per year of “good time” credits to facilitate early release and expands opportunities for inmate placement into residential reentry centers or home confinement.
Early Release Under The First Step Act
Among the most significant features under The First Step Act is that an inmate can now file a motion seeking a reduction in his or her sentence on the basis of “compassionate release” or placement into a half-way house and/or home confinement.
While there are certain eligibility requirements that still must be met, these new avenues for release under the First Step Act were not previously available to inmates and represent a significant change under federal criminal law.
Under the revisions made to the federal criminal code by The First Step Act, specifically 18 U.S.C. §3582, an inmate can now seek a reduction of his or her sentence. While previously a federal judge could not modify a term of imprisonment once it was imposed, a judge can now do so based upon “extraordinary and compelling circumstances” warranting a reduction or where the defendant is at least 70 years old and has served at least 30 years in prison.
There is no bright line test for what constitutes extraordinary and compelling circumstances and the issue is subject to determination based upon a case-by-case basis. In other words, much of it comes down to the discretion of the judge. This is a positive change from before where a judge’s hands were tied with respect to permitting a reduction in sentence.
Another basis for early release made possible by the First Step Act is the requirement that federal prison authorities must now consider more seriously the placement of inmates into a half-way house or home confinement as fulfillment towards their sentence.
The Second Chance Act
This is an expansion upon the Second Chance Act of 2007 which was originally launched as a pilot program administered by the Federal Bureau of Prisons to reduce the length of incarceration of certain inmates.
The Second Chance Act, when initially launched, was of limited success. It was not required to be made available at all federal prisons and it was only applied to inmates over the age of 65 who had served the greater of 75 percent of their sentence or 10 years in prison.
The First Step Act changed the Second Chance Act of 2007 by directing the Attorney General of the United States to make the program available to all federal prisons, by reducing age of eligibility age for prisoners to 60 years of age and by reducing the amount of time an inmate need have served from 75 percent to simply two-thirds of his or her sentence (including striking the requirement that an inmate must have served at least 10 years prior to becoming eligible). The result, in practical terms, is that a nonviolent inmate over 60 years of age can serve as much as one-third of his or her prison sentence in home confinement rather than a federal prison.
Greater Focus On Home Confinement As Coronavirus Spreads
As the coronavirus spreads through society, even the federal prisons have not been immune from its reach. According to recent news reports, several inmates and prison staff have become infected. Several federal facilities, including two in New York City alone, are now in lockdown as a result. Several state and local governments have begun serious consideration of releasing non-violent offenders in order to reduce the prison population and reduce the spread of the virus.
AG Barr’s Memorandum
Responding to growing concerns on this issue, United States Attorney General (AG) William Barr issued a memorandum dated March 26, 2020 to the Director of the United States Bureau of Prisons entitled “Prioritization of Home Confinement As Appropriate In Response To COVID-19 Pandemic.”
According to AG Barr’s memorandum, “there are some at-risk inmates who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than BOP facilities.” He further stated: “I am issuing this memorandum to ensure that we utilize home confinement, where appropriate, to protect the health and safety of BOP personnel and people in our custody.”
Coronavirus and Prison Population
While it is too early to speculate about the impact of the coronavirus on the federal prison population, it is likely that as the virus spreads across the United States and affects different populations, there will be increased pressure on federal authorities and courts to consider alternatives to reduce the prison population.
To this end, The First Step Act will once again play a central role given its specific provisions that govern reductions in sentence. If the coronavirus does not constitute an extraordinary and compelling reason necessitating examination of prison sentences for nonviolent offenders who meet other qualifying criteria, it is hard to imagine what would.
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Former federal prosecutor, respected lawyer committed to delivering results. Following graduation from the University of Illinois College of Law, Paul Padda began his career in 1994 with the United States Department of Justice in Washington, D.C. litigating complex civil cases in both federal trial and appellate courts. He later was selected to serve as an Assistant United States Attorney in the District of Columbia (Washington, D.C.) where he handled a wide array of civil matters in federal court on behalf of the United States of America. In 2004, Mr. Padda moved to Las Vegas to serve as an Assistant United States Attorney where he litigated both civil and criminal cases. Following 16 years of significant legal experience involving high stakes litigation, Mr. Padda decided to form a law firm that would assist individuals and businesses in vindicating their legal rights.