In December 2018, Congress adopted the First Step Act which allows defendants to move for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) if “extraordinary and compelling reasons” warrant it. Prior to December 2018, only the Bureau of Prisons (“BOP”) could move for compassionate release. Now, defendants can petition a court directly, subject to an administrative exhaustion requirement. When the First Step Act was adopted, no one could have predicted that the world would be battling a pandemic in 2020, and no one could have predicted just how important the compassionate release amendment would turn out to be.
In March and April 2020, the Attorney General twice directed the BOP to release inmates to home confinement, where appropriate, in order to protect the health and safety of people in the BOP’s custody. Nevertheless, it has been reported that many federal prisons have failed to comply with these directives.
Since March 2020, federal courts in New York and elsewhere have granted dozens of compassionate release applications for reasons related to the COVID-19 pandemic. Successful applications often involve the conflation of two or more of the following circumstances: a defendant who had exhausted administrative remedies; the government’s consent to the application; underlying medical conditions that put the defendant at risk of suffering severe consequences from COVID-19; a federal prison that is seeing a significant outbreak of COVID-19 in its population; or a defendant who has already served most of his sentence.
Our firm has filed and is in the process of filing several compassionate release applications on behalf of federal defendants, in New York and elsewhere.
In May 2020, partner Andrew Frisch was successful in obtaining compassionate release in the Eastern District of New York on behalf of a client who was held at FCI Fort Dix, in New Jersey. The case is United States v. Moskowitz, Case No. 11-cr-793 (WFK) (E.D.N.Y.). The resentencing memorandum and order is published at United States v. Moskowitz, 2020 WL 2187770 (E.D.N.Y. May 2, 2020).
In April 2020, senior associate Jolene LaVigne-Albert published in Law360 an article in which she analyzes the issue of the administrative exhaustion requirement: in the midst of the COVID-19 pandemic, a court’s willingness to waive the 30-day waiting period could become a matter of life or death. The article is available at https://www.law360.com/articles/1264971.
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