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.

Third Circuit's Decision in 'Raia'

The Third Circuit's precedential opinion in Raia illustrates the nuance of the statute. In Raia, a 68-year old Parkinson's disease victim with diabetes and a heart condition faced three months' imprisonment for buying votes as a city council candidate in Jersey City, N.J. United States v. Raia, — F.3d —, 2020 WL 1647922 (3d Cir. April 2, 2020). Raia reported to a New Jersey federal prison in early March, just as COVID-19 statistics began their staggering ascent in the New York/New Jersey area. Raia moved before the district court for compassionate release under the FSA, citing his health concerns and heightened risk for contracting the virus while in close-quarter confinement. Despite its "substantive merit," the district court said it lacked jurisdiction to decide the motion because of the government's pending appeal of Raia's sentence. The sentencing judge stated that Raia's age and medical conditions informed his initial conclusion that a "short term of imprisonment" would suffice without putting Raia at serious risk, but that the COVID-19 pandemic rendered that conclusion "subject to serious reconsideration." The judge went on to note that "a non-custodial sentence would be more appropriate." United States v. Raia, 18-cr-657 (D.N.J. March 26, 2020), Docket Entry No 86. Nevertheless, the court denied Raia's motion for compassionate release.

Raia then moved for the same relief before the Third Circuit but, in its April 2 decision, that court, too, denied his application. First, the Third Circuit cited Raia's failure to exhaust administrative remedies under Section §3582(c)(1)(A) of the FSA. According to the panel, Raia should have first asked the BOP to seek a sentence reduction on his behalf, provided the BOP thirty (30) days to respond, and, if that request was denied, filed an administrative appeal with the BOP before filing his motion. Having failed to give the BOP the requisite 30 days to respond, the Court deemed Raia's motion deficient. Raia, 2020 WL 1647922, at *2. Notably, the panel in Raia made clear its expectation that BOP would "speedily dispatch[]" such administrative requests consistent with a March 26, 2020 directive from Attorney General William P. Barr that the BOP use home confinement where appropriate for inmates seeking transfer in connection with the COVID-19 pandemic. Id.

Movants must articulate more than the mere risk of contracting the virus in prison to succeed on a motion for compassionate release based on COVID-19 concerns, the Third Circuit added. As that court put it, the "mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release," citing the BOP's stated efforts to ensure inmate safety. Id. As the number of positive cases continues to climb with each passing news report, it remains unclear whether and to what extent this rigid standard will hold.

Developments in the E.D.N.Y. 'Chunn' Litigation

But recent litigation suggests that courts, and the BOP, may be primed to support sentence reductions in appropriate cases. In a recent putative class action filed in the Eastern District of New York, captioned Chunn et al v. Warden Derek Edge, non-violent offenders are seeking early release under the FSA. Chief Judge Roslynn R. Mauskopf, who presides over the Chunn case, called for three New York federal prisons to report on the status of the pandemic in their facilities. According to court papers filed in Chunn, the BOP reported that, "[o]ver the past three days alone, the number of incarcerated people reported as testing positive in BOP facilities has nearly tripled, and since March 20, 2020, the number has increased more than 50-fold." Chunn et al. v. Edge, 20-cv-1590 (RPK) (RLM), Docket Entry No. 26-1 at ¶3 (4/3/20 Supplemental Declaration of Katherine Rosenfeld). As of April 3, the BOP reported that two inmates and five staff members tested positive at the Metropolitan Detention Center (MDC) in Brooklyn, id. at ¶5.; and, as of April 2, four inmates and seven staff members tested positive at Metropolitan Correctional Center (MCC) in lower Manhattan. Id., Docket Entry No. 26-3, pg. 2 (4/3/20 Letter from U.S. Department of Justice to the Honorable Roslynn R. Mauskopf). A climb in positive test results among incarcerated persons and staff may well impact courts' views of the COVID-19 "risk" argument, which the Third Circuit deemed insufficient in Raia.

The BOP seems to agree that the "mere risk" of contracting the virus may be enough to warrant compassionate release under the FSA. When the petitioners in Chunn attacked MDC's position that mere threat of contracting COVID-19 was an insufficient basis for compassionate release, the BOP stated in court filings that the MDC "has not 'made a blanket determination that the threat of contracting COVID-19 will never be enough to qualify someone for Compassionate Release, regardless of their vulnerability to that disease.'" Id., Docket Entry No. 30 (4/3/20 Letter from Assistant U.S. Attorney James R. Cho to the Hon. Roslynn R. Mauskopf).

This inference from BOP's position—that the threat of contracting COVID-19 could meet the FSA's "extraordinary and compelling reasons" standard—seems in discord with Third Circuit's conclusion in Raia that "mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release."

In a significant win for the petitioners in Chunn, on April 15, Judge Rachel P. Kovner overruled the BOP's objections and granted Petitioners' expert witness access to inspect the BOP's facility at MDC and interview inmates to examine the conditions there. Chunn, 20-cv-1590, Docket Entry No. 45.

The Department of Justice's Approach

The Department of Justice recently recognized the FSA as an avenue for relief for appropriate offenders in light of COVID-19. On April 3, 2020 – the day after the Third Circuit's decision in Raia—Attorney General Barr issued another memorandum to BOP, urging the increase of home confinement at federal institutions most impacted by COVID-19, including FCI Oakdale, FCI Danbury, and FCI Elkton. The April 3 memo also declared "emergency conditions" within BOP facilities, clearing the way under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) for the BOP to impose home confinement for a greater percentage of inmates' sentence than previously allowed. CARES Act §12003(b), Pub. L. No. 116-136, 134 Stat. 281 (2020). Due to the significant levels of infection present at those facilities, Attorney General Barr directed officials to "move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions." April 3, 2020 Memorandum of Hon. William P. Barr for the Director of Bureau of Prisons (4/3/20 Barr Memo), at 1.

In a related position, Attorney General Barr issued an April 6, 2020 memorandum directing federal prosecutors to consider COVID-19-related medical risks in their advocacy under the Bail Reform Act. Acknowledging the vulnerability of the prison system, Attorney General Barr warned that despite the BOP's "extensive precautions," each new inmate brings "at least some risk to the personnel who operate that facility and to the people incarcerated therein," as well as to "the individual being remanded into custody." April 6, 2020 Memorandum of Hon. William P. Barr for all heads of Department Components and All United States Attorneys, at 2.

These cues from the government suggest that the FSA offers a viable and potentially promising avenue for counsel to seek a sentence reduction for the right applicant. Indeed, since AG Barr's March 26, memo instructing the BOP to prioritize home confinement as an appropriate response to the COVID-19 pandemic, it has placed an additional 1,022 inmates on home confinement. (https://www.bop.gov/coronavirus/ (April 15, 2020)). And while courts have acted in recent weeks to grant scores of non-violent inmates relief under the FSA, others like Raia have denied such applications largely for failure to exhaust administrative remedies. See, e.g., U.S. v. Neman, 2:14-cr-00521 (C.D. Cal, March 30, 2020) (denying FSA application for failure to exhaust); U.S. v. Nkanga, 18-cr-713-JMF (S.D.N.Y. March 31, 2020); U.S. v. Credidio, 19-cr-111-PAE (S.D.N.Y. April. 2, 2020); U.S. v. Woodson, 18-cr000845-PKC (April 6, 2020); U.S. v. Holden, 3:13-cr-00444 (April 6, 2020); U.S. v. Weiland, 18-cr-273-LGS (S.D.N.Y. April 6, 2020). At a minimum, the new DOJ and BOP guidance will no doubt be of use to the likes of Francis Raia, who first moved for relief in early March.

Conclusion

While the paradigm governing FSA sentence reductions remains in as much flux as the pandemic itself, developments like those in Raia, the Chunn litigation, and the DOJ and BOP memos offer some practical guidance to those who invoke the statute. Movants should heed that guidance, and take care to:

• Exhaust administrative remedies by first asking the BOP to move the sentencing court on the movant's behalf, and allow 30 days for the BOP to respond. Then, if the BOP does not respond favorably, administratively appeal any adverse responses within the BOP;
• Once administrative remedies are exhausted, move first before the district court (even when appeal of a sentence is pending) and appeal any adverse ruling from that court; and
• Cite reasons beyond the "mere existence" of the pandemic as a basis for compassionate release. Motions should be tailored to the inmate's particular medical circumstance, and with an eye toward the current state of affairs within the inmate's particular facility, and the BOP at large.

Eric W. Moran is a member and Elena M. Quattrone is an associate at Epstein Becker & Green.