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Emergency Release from Jails and Prisons during COVID-19 and Coronavirus
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Emergency Release from Jails and Prisons during COVID-19 and Coronavirus

UPDATED December 30, 2020

Correctional facilities around the country are actively trying to figure out how to mitigate and contain the novel coronavirus (COVID-19) in crowded, confined spaces where social distancing is virtually impossible. This article addresses the options for federal prisoners, Michigan Department of Corrections (MDOC) prisoners, and inmates in county jails to obtain early release due to COVID-19.

An experienced criminal defense attorney can advocate for emergency release while the justice system is proactively searching for ways to reduce the incarcerated population. The attorneys at Springstead Bartish Borgula & Lynch, PLLC, are expert practitioners and have handled many early release and compassionate release cases in Michigan and in federal courts around the country.

Call today for a free consultation on how to get out of jail and prison during COVID-19: (888) 536-5900.


Early Release from Michigan County Jails during COVID-19

Inmates in county jails had a strong chance of immediate release under the Governor’s Executive Order that allowed county jails and courts to release inmates early if they met certain criteria under MCL § 801.51a. However, the Governor’s Executive Orders pertaining to early release from Michigan county jails is now expired, and it is unclear if another one will be issued as the pandemic evolves. Please check Michigan.gov for updates.

Nevertheless, despite the expiration of the Governor’s Executive Orders to reduce county jail populations during the COVID-19 pandemic, there are still options for early release from county jails.

One option that exists for county jail inmates is for medical probation for “acute long-term medical care” under MCL § 771.3g. This rule allows a court to “enter an order of probation placing a prisoner on medical probation under the charge and supervision of a probation officer if the court finds that the prisoner requires acute long-term medical treatment or services, or that the prisoner is physically or mentally incapacitated with a medical condition that renders the prisoner unable to perform activities of basic daily living and the prisoner requires 24-hour care.” MCL § 771.3g(3). Placement can be in a medical facility or “home confinement.” The inmate must undergo a medical assessment and a public hearing that allows victims to be heard on the issue. If the medical care requires payment not covered by Medicaid or insurance, the sheriff’s office can seek reimbursement from the inmate.

A similar statute allows for “compassionate release” for a county jail inmate whose life expectancy is 6 months or less. MCL § 771.3h. The State Appellate Defender Office website has a sample motion for compassionate release or medical probation for inmates exhibiting COVID-19 symptoms.

Inmates in pretrial detention due to inability to pay the bond have a particularly strong case for release during COVID-19. If the court would have released the person if the person could have paid the bond, then detention might not actually be required as a community protection measure, especially in the face of a public health crisis. The State Appellate Defender Office has resources on filing emergency motions for reconsideration of bond in light of COVID-19.

Additionally, inmates who are in county jail on a probationary sentence, or because of a probation violation, can petition the court for release by asking that the probation order be changed in light of the coronavirus outbreak. Courts can amend a probation order “in form or substance at any time.” MCL § 771.2(5).

A defense attorney can advocate for appropriate alternatives to confinement in light of the pandemic. For example, a particular case might be appropriate for pretrial diversion, probation, community service, delayed sentencing, or use of community mental health and substance abuse programs as alternatives to confinement in county jails.


Early Release from Michigan Department of Corrections (MDOC) during COVID-19

Unfortunately, because of Michigan’s Truth in Sentencing laws, inmates have no good recourse for early release from MDOC due to COVID-19 or other health-related reasons unless they are eligible for parole. Under MCL § 791.235, inmates can go through a process to request parole based on medical conditions, but the process is lengthy and rarely granted.

Inmates can apply directly for Michigan’s pardon or commutation process, but the process is lengthy, cumbersome, and very unlikely to succeed.

One potential avenue is the Michigan statute allowing for a 25% reduction in an existing sentence if an inmate’s “conduct, diligence, and general attitude merit such a reduction.” MCL § 801.257. The State Appellate Defender Office has some sample resources on this avenue on its COVID-19 resource page.

For those seeking basic medical care beyond what is being provided in prison, but not quite to the level requiring “acute long-term medical care,” MCL § 791.265a could be the answer. Under that section, MDOC can release an inmate to “obtain medical services not otherwise available to a prisoner housed in a state correctional facility.” MCL § 791.265a(1)(b).

Inmates not exhibiting COVID-19 symptoms who are still within 6 months of their sentencing date might be able to petition for resentencing. Based on a “lack of information” or “incorrect information” available at the time of sentencing — because the extent of the coronavirus pandemic was unknown, or the outbreak at a particular prison has worsened — it is possible to ask the court for a resentencing under MCR 6.429 within 6 months.

Another approach is to appeal to the spirit of the civil practice rules under MCR 2.613(A), which allows for modification of a judgment to make it consistent with “substantial justice” and has some application in criminal cases. The State Appellate Defender Office website has a sample motion on these grounds under Motion for Resentencing here. Courts are unlikely to upset existing sentences for MDOC prisoners.


Early Release for Bureau of Prison (BOP) Inmates during the COVID-19 Outbreak

The U.S. Attorney General issued guidance recently in light of COVID-19 that urges BOP to make liberal use of home confinement in lieu of incarceration. Federal law also provides for compassionate release in situations where either the inmate, the inmate’s spouse or partner, or the caretaker of the inmate’s minor children is critically ill or incapacitated. In addition, federal inmates in pretrial detention or in custody due to federal supervised release violations may have a clear path to petition the court directly for release during the COVID-19 pandemic.

Home Confinement for BOP Inmates during COVID-19

On March 26, 2020, U.S. Attorney General William Barr issued a memorandum to all federal prisons directing liberal use of home confinement for “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 in BOP facilities.” Home confinement is entirely in the hands of the BOP, and courts will not intervene to force BOP to approve home confinement. Home confinement is seen by the courts as a “place” of confinement, rather than a “release” from confinement, and therefore BOP has complete authority over it.

The Attorney General urges BOP facilities to use the home confinement statutes, as well as the following list of “non-exhaustive” and “discretionary” factors in considering release on home confinement:

  • The age and vulnerability of the inmate to COVID-19, in accordance with CDC guidelines;
  • The security level of the inmate’s current facility, with priority given to inmates in low and minimum security facilities;
  • The inmate’s conduct in prison, especially in the last year;
  • The inmate’s recidivism and needs assessment score under PATTERN;
  • The verifiable conditions under which the inmate would reside during home confinement, demonstrating that the inmate would be at a lower risk of contracting COVID-19 at home than in the current BOP facility; and
  • The inmate’s crime of conviction and assessment of the danger posed by the inmate to the community, with some offenses like sex offenses making the inmate ineligible.

If the BOP facility determines the inmate is a candidate for home confinement, the facility must conduct an assessment of the inmate’s risk factors for severe COVID-19 illness, and the risks of exposure in the facility versus the risk of exposure at the inmate’s home. The Attorney General directs that BOP should “not grant home confinement to inmates when doing so is likely to increase their risk of contracting COVID-19.”

Before an inmate is released from BOP to home confinement, the person must undergo a 14-day quarantine period inside the facility. Additionally, all incoming inmates to BOP will be quarantined for 14 days, in an effort to limit the spread by new inmates.

Compassionate Release and Reduction in Sentencing for BOP Inmates during COVID-19

The second way that inmates can obtain relief from confinement during COVID-19 is through “compassionate release” under the First Step Act. Federal inmates in BOP custody can get their sentences reduced to time served under the compassionate release laws “in particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” 28 C.F.R. § 571.60 (also see 18 U.S.C. § 3582 (for inmates sentenced Nov. 1, 1987, or later) and § 4205(g) (for inmates sentenced prior to Nov. 1, 1987)). The statute does not specify what constitutes an “extraordinary or compelling reason,” and courts evaluate requests individually.

To apply for compassionate release for any “extraordinary or compelling reason,” an inmate MUST submit a request to the warden of the BOP facility requesting compassionate release and listing the reasons. The request to the warden should include the specifics of the extraordinary or compelling circumstances that the inmate believes warrant consideration, as well as details of the proposed release plans, including where the inmate will reside and how the inmate plans to support himself or herself. If the extraordinary circumstance is personally health-related, then the request should also include information on where and how the inmate will receive and pay for medical treatment. If the warden and BOP Director approve, then BOP contacts the U.S. Attorney’s Office in the district where the inmate was sentenced, and the U.S. Attorney’s Office makes a motion to the court to modify the sentence. For inmates sentenced prior to Nov. 1, 1987, the final step is a review by the Parole Board. Inmates sentenced after Nov. 1, 1987, are not subject to parole in the federal system and can be released automatically following the judge’s order. However, wardens will deny the request in almost every case.

Thirty days after submitting the request to the warden, the inmate can petition the court directly. The motion goes back to the inmate’s original sentencing court and is considered a motion for resentencing.

“In the event the basis of the request is the medical condition of the inmate, staff shall expedite the request at all levels.” 28 C.F.R. § 571.62 (c). According to BOP policy, a qualifying medical condition includes:

  • A terminal medical condition of the inmate;
  • A completely and permanently debilitating medical condition or disability;
  • An inmate age 65 and older suffering from chronic and serious medical conditions who has served at least 50% of the sentence;
  • Death or incapacitation of the primary caregiver for the inmate’s minor child; or
  • Incapacitation of the inmate’s legal or common-law spouse or “registered partner” (defined as a relationship recognized as a civil union or registered domestic partnership).

Federal courts will also look at other conditions or other reasons that are extraordinary and compelling.

Early release is also available for inmates age 70 or older who are not ill but who have served at least 30 years in prison for the current conviction, where the BOP Director determines that the defendant is “not a danger to the safety of any other person or the community.” 18 U.S.C. § 3582(c)(1). Per BOP policy, inmates age 65 or older can also be considered if they have served 10 years or 75% of their original sentence, whichever is higher. These two policies are confusing to square mathematically, but they are both available pathways nonetheless for senior inmates age 65 and older to consider.

In considering the request for compassionate release or a reduction in sentence due to age or illness, the BOP looks at factors including the inmate’s offense and criminal history, any comments from victims, supervised release violations, disciplinary infractions, personal history derived from the presentence report, length of sentence, time served, current age, age at the time of the offense, the inmate’s release plans, and whether release would minimize the severity of the offense. As with any early release, concern for the safety of the community is paramount.

If the request for compassionate release makes its way to a federal court – either because the BOP and U.S. Attorney’s Office recommend it or because the inmate petitions the court directly – the court considers the standard sentencing factors it normally would in a federal sentencing hearing. Those factors include seriousness of the offense, the need to deter future crime and protect the community, the sentencing guidelines range, the need to avoid unwarranted sentencing disparities, and the need to provide medical care/education/correctional treatment. 18 U.S.C. § 3553(a).

Release from Federal Pretrial Detention or BOP Custody after Supervised Release Violation as a Result of COVID-19

For an inmate detained pending trial in a federal case, or remanded to custody following a federal supervised release violation, the court can amend its order and release the person at any time upon motion by either party or on its own motion. A judge can reopen the issue of detention “at any time before trial” if the judge finds that “information exists that was not known” at the time of the detention order and that the information has a material impact on the issue of detention. 18 U.S.C. § 3142(f)(2)(B).


Compassionate Release Attorney

Our firm specializes in criminal law, and we work in state courts throughout Michigan and in federal courts around the country. Contact the criminal law experts Springstead Bartish Borgula & Lynch, PLLC, at (888) 536-5900 to discuss petitioning the court for immediate release.