WEST PALM BEACH, Fla., April 13, 2020 (GLOBE NEWSWIRE) -- Dimond Kaplan & Rothstein, P.A.’s criminal defense team alerts incarcerated individuals and their families of the possibility of early release in an effort to protect oneself or a loved one from the COVID-19 pandemic. The Federal Bureau of Prisons’ Compassionate Release Program may permit an early release from a Federal prison sentence. For those incarcerated in a Florida state prison, a motion to mitigate or modify sentence can be filed.

Understanding The Compassionate Release Program

The Compassionate Release Program at the Federal Bureau of Prisons (BOP) permits certain inmates who no longer pose a significant threat to society to petition to be released from prison before their sentences are complete. This program allows federal prison inmates and their friends or family members to request reduced sentences or early release for a variety of reasons, like the diagnosis of a serious medical condition or incapacitation of a spouse.

Compassionate Release for COVID-19

Federal law authorizes the Bureau of Prisons to allow certain inmates to request “Compassionate Release” which allows for early release from Federal prisons under “extraordinary and compelling” circumstances. Additionally, the First Step Act may allow judges to release federal inmates during this pandemic, especially those with serious illnesses or conditions or those that are vulnerable to respiratory issues that can be particularly harmful if infected with the Coronavirus. If you would like assistance filing a motion for Compassionate Release, throughout Florida, due to Coronavirus or COVID-19, please contact our office to discuss your specific case. Our consultations are free.

In 2018, the First Step Act was passed to make the justice system fairer and to facilitate inmates’ successful transition back to society. Consequently, those serving long prison sentences now have a new opportunity to file a court motion for compassionate release. Before this, inmates had to request early release directly from the BOP. The BOP would then agree to file a motion with the court requesting the inmate’s early release. Since the BOP rarely files motions for inmates, the requests often would remain in limbo.

Now, if the BOP refuses the request, federal prison inmates and their friends and family members can petition the court for early release directly. Below are some of the situations that may merit a compassionate release, how to seek an early release, and some constraints to the program.

Who may qualify for compassionate release?

Inmates with “extraordinary and compelling circumstances”

The BOP and the U.S. Sentencing Commission have standards outlining the types of “extraordinary and compelling circumstances” for which one may seek a reduced sentence or early release. These are broadly defined, especially by the Sentencing Commission. Circumstances related to medical conditions for example, must be confirmed by a licensed physician in addition to the court and BOP personnel related to the case. Some examples of situations included under 18 U.S.C. 3582 and 4205(g) that may qualify for compassionate release include:

Medical Circumstances

• Terminal Diagnosis: Upon receipt of a terminal diagnosis with a life expectancy that is less than 18 months, an inmate can seek compassionate release.
• Debilitating Medical Condition: This applies to inmates who suffer from incurable, progressive illnesses. It also extends to inmates who can no longer care for themselves due to disability or a debilitating injury, and to those who are bed- or wheelchair-bound. Diminishing cognitive function, as in patients with Alzheimer’s, for example, may also merit early release.

Elderly Inmates

• Inmates who were sentenced on or after the “new law” was implemented in November 1, 1987, and who are 70 years or older and have served at least 30 years of their sentence.
• At least 65 years old, in failing health and have served at least 10 years or 75% of their original sentence.

Family Circumstances

• If the family member caring for the inmate’s child dies or becomes otherwise incapacitated and therefore incapable of caring for the child.
• In the case where an inmate’s spouse or registered partner becomes incapacitated and the inmate is the only available caregiver.

Inmates who no longer pose danger or a risk to their community

Only inmates who would not be a danger to their community will be released under the Compassionate Release Program. To measure this risk, many judges refer to the Bail Reform Act, which details what should be considered before an inmate is released. If, for example, the inmate was on bond before their trial, this may show that they don’t pose a significant risk to their community. Some of the factors to be considered include:

• Nature of the crime committed
• Evidence against the inmate
• Character and history of the inmate: the current physical and mental condition of the inmate, ties to family and/or local community, criminal history, history of drug or alcohol abuse
• Length of sentence and time served
• Release plans: future employment, medical condition, financial

According to sentencing guidelines found in 18 U.S. Code § 3553, courts should also consider:

• The need for the sentence that has been imposed
• Does the sentence reflect the gravity of the offense?
• Does the sentence provide adequate deterrence of future criminal conduct?
• The types of sentences available for the crime committed
• Does the sentence sufficiently protect the public?

After serving a portion of the sentence, the answers to these questions may be different from the answers at sentencing. Requests weigh each of these considerations differently to determine whether an inmate’s release is safe for his or her community.

How to file for compassionate release

Prior to filing a motion for compassionate release with the court, according to the First Step Act, one must fulfill one of these prerequisite requirements:

1. Have requested early release from the BOP as part of the Compassionate Release Program and waited at least 30 days for the BOP to respond.
2. Have requested early release from the BOP and received a rejection; have “exhausted all administrative remedies” available via the BOP.

The BOP normally responds to early release requests and it usually rejects most of those requests. Before filing with the court, however, all “administrative remedies” must be exhausted. This means that the individual petitioning for early release must appeal the BOP’s decision up through the ranks until a “Final Decision” has been reached.

The process from initiating the request to obtaining a “Final Decision” usually looks like this:

• An inmate requests that the BOP files a motion for his or her early release
• The Warden responds within 30 days by granting or denying the request
• If the request is rejected by the Warden, the inmate has 20 days to appeal the Warden’s decision
• The regional director will grant the appeal or uphold the Warden’s decision
• If the request for early release is denied by the Regional Director, the inmate has up to 30 days to appeal
• The BOP’s General Counsel or the BOP Director will hand down the final decision on the inmate’s request.

After the final decision has been received and the request for early release has been rejected, the inmate is free to file directly with the court.

What makes a motion for compassionate release successful?

If the inmate may qualify for a compassionate release, a convincing case in support of your request is essential. Successful motions for release will achieve the following:

1. Demonstrate that “extraordinary and compelling reasons” justify an early release. Medical conditions may warrant a request for expedited review. Supporting documentation, like verifiable medical information or copies of the death certificate of the inmate’s child’s caregiver for example, are critical to building a compelling case for early release.

2. Substantiate that an inmate’s early release from prison is reasonable according to the standard sentencing guidelines and that it does not put the community at risk. If the condition is physically or mentally disabling, or the inmate was released on bond prior to trial, for example, the inmate may pose significantly less risk to society. Highlighting character references and admirable behavior patterns can help shore up a compassionate release request.

3. Proposed release plans that work to re-integrate the inmate after incarceration. Answer where the inmate will live and work upon release. If the request is based on a medical condition, show how the inmate will be treated and note who will cover those costs. If the inmate poses a risk to the community, a judge may consider stipulating that a curfew, home detention, or location monitoring be enforced as a condition of release.

Conclusion

The BOP’s Compassionate Release Program expanded by the First Step Act offers several opportunities for federal inmates to seek early release. Certain sets of unique circumstances that arise after an inmate has been sentenced and begun serving their term may merit consideration under these guidelines.

Successful motions will speak to the inmate’s character and ensure that an early release poses no danger for the community. The BOP also stipulates that the petition should include how the to facilitate the inmate’s re-entry to society upon release.

Next steps… talking to an experienced attorney to file a motion for release

Contact DKR’s criminal defense lawyers for a free consultation about the possibility of an early release as a result of the COVID-19 pandemic. Our team of experienced criminal defense lawyers will work with you to file a request for early release in an effort to get you or your loved one out from behind bars.

Attorney Michelle Suskauer leads Dimond Kaplan & Rothstein, P.A.’s criminal defense team out of the firm’s West Palm Beach, Florida office. Michelle began her legal career as an assistant public defender in West Palm Beach, and she has been practicing criminal defense law in both state and federal court throughout Florida since 1991.

Michelle is the Immediate Past President of The Florida Bar, having served as President of The Florida Bar from 2018-2019. She also is Past-President of the Palm Beach County Bar Association, Past-President of the Florida Association for Women Lawyers – Palm Beach County Chapter. She also is a nationally recognized legal analyst who has appeared on CNN, NBC, MSNBC, FOX News, as well as serving as a legal expert for Palm Beach County affiliates WPTV and FOX 29.

Michelle is an AV rated attorney by Martindale-Hubbell, reflecting an attorney who has reached “the height of professional excellence” and is recognized for the “highest skill and integrity.” She has been recognized in the annual Florida Super Lawyers magazine as one of Florida’s top criminal defense attorneys and by Florida Trend magazine as one of Florida’s “Legal Elite” in its annual statewide poll of attorneys.

Michelle Suskauer, Esq.
michelle@dkrpa.com
Dimond Kaplan & Rothstein, Esq.
Northbridge Centre
515 N. Flagler Drive,
Suite P-300
West Palm Beach, FL 33401
(561) 671-1920
http://michellesuskauer.com/