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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. Without the social distancing and constant sanitizing measures prescribed by the Centers for Disease Control and Prevention (CDC), the deadly virus is likely to spread rapidly and exponentially. Correctional facilities can only impose limited quarantine and isolation protocols, as correctional staff enter and exit with every shift change and inmates come and go daily.

The public health impact for correctional facilities extends beyond just the safety and wellbeing of the inmates. If inmates become critically ill in vast numbers, the correctional system will become overwhelmed, jail and prison staff could dwindle below minimum needed numbers, and governments risk exposing themselves to potential lawsuits for lack of proper inmate care and safekeeping. In a system that’s not built for speed, the correctional system is facing growing uncertainty in how to adapt to a rapidly changing public health crisis.

There is a limited window of opportunity during the coronavirus pandemic for early release from federal prisons, Michigan Department of Corrections (MDOC) custody, county jails, and juvenile detention.

The mechanisms for early release are not obvious and are relatively untested, but courts, sheriffs, prison wardens, prosecutors, and defense attorneys are actively seeking ways to curb the epidemic before it overwhelms the system. An experienced criminal defense attorney can advocate for emergency release while the justice system is proactively searching for ways to reduce the incarcerated population.

EARLY RELEASE FROM MICHIGAN JAILS AND PRISONS DURING COVID-19

Michigan courts and correctional facilities are embracing the immediate need to reduce jail and prison populations in the face of COVID-19. For example, sheriffs in Kent County and metro Detroit have been reducing inmate populations in their county jails since mid-March by identifying non-violent offenders, elderly inmates, and inmates with certain medical conditions or only a short time left on their sentence for immediate release. Other inmates on the list are those serving time for technical parole and probation violations or in pretrial detention for nonviolent offenses. These efforts are largely being supported by prosecutors and courts.

Governor Gretchen Whitmer released Executive Order No. 2020-29 on March 29, 2020, mandating enhanced COVID-19 safety protocols for correctional facilities and opening significant opportunities for early release from county jails and juvenile detention facilities, as discussed below. These are the first statewide efforts to synchronize how to handle early releases statewide.

In every case, courts consider whether the inmate poses a risk to public safety if the person is released. Judges make decisions on a case-by-case basis to determine if early release is a safe and appropriate option. Not everyone can or will be released just because correctional facilities are at risk of COVID-19. Correctional facilities have navigated public health emergencies in the past — including MRSA, tuberculosis, hepatitis, and influenza H1N1 — though perhaps not to this degree of contagion. Even people meeting all the criteria are not guaranteed release, as release is an exception rather than a rule.

But the opportunity for release is real and present. The window of opportunity will be short. There are two main bases for release: medical release due to coronavirus exposure and release based on a belief that the person will not pose further harm to the community. Many courts throughout Michigan are hearing emergency motions on both grounds.

RELEASE FROM MICHIGAN COUNTY JAILS DURING COVID-19

Inmates in county jails appear to have the highest chance of immediate release. In Michigan — and around the country — many sheriff’s offices are in the process of identifying inmates for potential early release and are actively reducing their county jail populations by the hundreds.

Robert Dunlap, chief of jails and courts for the Wayne County sheriff’s office, explained the process to the Detroit News:

First, jail medical staff identifies the inmates at greater risk for the coronavirus. The sheriff’s office then pares down that list, excluding those accused of assaultive crimes, felonies and some high misdemeanors, and makes recommendations on which inmates could be released on tether rather than held in jail. That requires the sign-off of both the prosecutor’s office and the judge.

The Wayne County Circuit Court uses the CDC guidelines to determine whether someone is considered vulnerable. Wayne County Chief Circuit Judge Timothy Kenny said these evaluations are being looked at daily. He explained to the Detroit News that “those who are charged with serious, violent felonies, who were not given bond” are unlikely to be released, as well as “people facing driving while intoxicated or domestic violence charges.”

In light of the COVID-19 pandemic, Governor Whitmer issued Executive Order No. 2020-29 on March 29, 2020. It allows sheriffs and courts to tap into the sweeping authority for reducing county jail populations under the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq. It waives the requirement that jails must actually be overcrowded. The executive order is in place through April 26, 2020.

The order allows (but does not require) sheriffs and judges to reduce their county jail populations as follows:

● Any inmates in pretrial confinement with a bond below a certain “maximum value” set by the chief circuit judge shall have their bond modified by the sheriff “to a personal recognizance bond in the same amount.” MCL § 801.51a(1)(a) and (2).
● Inmates who have served 85% or more of their sentence “shall be released immediately,” unless they are serving a sentence “for a violent or assaultive offense, sex offense, prison or jail escape offense, weapons offense, drunk driving offense, or a controlled substance offence” of anything other than “possession of less than 25 grams of a controlled substance.” MCL § 801.51a(1)(b)(i).
● Inmates jailed “for a civil contempt adjudication for failure to pay child support” with no other pending charges must be released immediately. MCL § 801.51a(1)(b)(ii).
● A sentencing judge “may suspend or reduce any validly imposed jail sentence imposed by that judge” at any time. MCL § 801.59b(1).
● A judge “may modify bond set by the court” at any time. MCL § 801.59b(2).
● The sheriff and courts can take other measures to reduce the jail population, including accelerated review and rescheduling court dates; judicial review for bail reduction; prosecutorial pretrial diversion in lieu of confinement; judicial use of probation, fines, community service orders, restitution, and delayed sentencing; sheriff’s use of work-release, community programs, and alternative housing; the use of appearance tickets instead of booking at the county jail; acceptance by the court of credit cards to pay bonds, fines, and court costs; and use of community mental health and substance abuse programs as alternatives to confinement in county jail. MCL § 801.55.
● If jail time for a probation is amended under this Act, the total period of probation shall not be reduced despite release from confinement. MCL § 801.62.
● The chief circuit judge in the county can deny any inmate’s release if the judge believes the inmate would “present a threat to the public safety if released.” MCL § 801.51a(1)(b).

Sheriffs are charged with identifying eligible inmates. But inmates can petition the sheriff and court directly as well. In addition to the criteria listed above from the CJOA, the Governor’s executive order specifically urges sheriffs and courts to consider early release for all of the following county inmates, as long as they do not pose a public safety risk:

● “Older people”;
● People who “have chronic conditions or are otherwise medically frail”;
● Pregnant women;
● “People nearing their release date”;
● Anyone incarcerated for a traffic violation;
● Anyone incarcerated for failure to appear or failure to pay; and
● Anyone with behavioral health problems who can safely be diverted for treatment.

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 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).

Regardless of whether the sheriff in your county has invoked the CJOA yet, a criminal defense attorney can bring a petition for early release directly to a court. You might qualify for early release if you are:

● In pretrial detention because of an inability to pay the bond amount;
● Nearing the end of your sentence for a non-violent offense and have a clean disciplinary history in jail;
● Age 65 or older;
● Pregnant;
● Suffering from a chronic medical condition or are “otherwise medically frail”;
● Exhibiting COVID-19 symptoms; or
● In county jail due to a probation violation, traffic violation, or failure to appear.

To boost your claim for release during the novel coronavirus pandemic, courts will need assurances that you will not be a danger to the community if released. You can prove this by demonstrating, for example, that you:

● Are a first-time offender;
● Do not have a violent or lengthy criminal history;
● Have a stable employment history;
● Have a safe and stable place to reside; and/or
● Other factors indicating you will not commit crimes if released.

RELEASE FROM MICHIGAN DEPARTMENT OF CORRECTIONS (MDOC) DURING COVID-19

The Governor’s Executive Order No. 2020-29 imposes a number of health and safety rules for MDOC facilities during COVID-19, including new restrictions on inmate transfers, but it does not open new doors for release the way it does for county jails. However, MDOC inmates can take advantage of several existing options to move for early release. While Michigan’s pardon or commutation process exists for ending a prison sentence immediately, the process is likely too cumbersome and time consuming to work during the time-sensitive nature of this pandemic.

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.

Another avenue for MDOC inmates exhibiting COVID-19 symptoms is 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 an 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.

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 — 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. Moving the court for resentencing based solely on the existence of the COVID-19 outbreak is as-yet largely untested, and the law does not appear directly on point. Such a motion, however, could work with a sympathetic judge in the right case. Courts are unlikely to upset existing sentences en mass absent individualized medical need.

RELEASE FROM JUVENILE DETENTION DURING COVID-19

Governor Whitmer’s Executive Order No. 2020-29 emphasizes that juvenile detention centers across Michigan are “strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19” by taking certain health precautions and implementing the following:

● Eliminate “any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others”;
● Suspend any juvenile detention outside of home confinement for technical probation violations, unless otherwise directed by the court;
● Remove any juveniles from the general population who have COVID-19 symptoms; and
● Suspend all in-person meetings with juvenile probation officers unless directed otherwise by the court.

EARLY RELEASE FOR FEDERAL BUREAU OF PRISONS (BOP) INMATES DURING THE COVID-19 OUTBREAK

Federal prisons owe a duty of care to inmates to “provide suitable quarters and provide for the safekeeping, care, and subsistence” of people in BOP custody. 18 U.S.C. § 4042. 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 limited to either 10% of the inmate’s total sentence or 6 months, whichever is shorter, and is generally reserved for the end of a person’s federal sentence as a re-entry tool. 18 U.S.C. § 3624(c)(2). The Attorney General’s memorandum references the statutory requirements of home confinement, but it does not specify whether exceptions can be made, such as release for longer than the statutory timeframe or in the middle of a custodial sentence, where the inmate would return to BOP. Anyone released on home confinement must be subject to electronic monitoring (tether). The home confinement statute does not have any requirements based on age or health.

The First Step Act also provides an avenue for home confinement for “elderly and terminally ill” inmates, which does not have the same 10% or 6-month time limits as Section 3624(c)(2). The program allows BOP to “release some or all eligible elderly offenders and eligible terminally ill offenders from Bureau facilities to home detention [a.k.a. home confinement], upon written request from either the Bureau staff, or an eligible elderly offender or eligible terminally ill offender.” 34 U.S.C. § 60541. Inmates who qualify for the “elderly” exception must be age 60 or older, must have served 2/3 or more of their sentence, and must not:

● Be serving life imprisonment;
● Be convicted of certain violent crimes or sex offenses;
● Have a history of violence;
● Have tried to escape; or
● Pose a substantial risk of criminal conduct or danger to anyone else if released on home confinement.

Inmates who qualify as “terminally ill” have essentially the same considerations and parameters, except there is no minimum age, and a doctor must determine that the person is in need of full-time medical care or has been diagnosed with a terminal illness.

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

Federal inmates in BOP custody can also 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 a COVID-19 pandemic might very well qualify. An inmate experiencing COVID-19 symptoms would likely have a good shot.

To apply for compassionate release for any “extraordinary or compelling reason,” an inmate submits a request to the warden of the BOP facility, and if the warden does not respond within 30 days, the inmate can take the request directly to the original sentencing court. The request to the warden should include the specifics of the extraordinary or compelling circumstances that the inmate believes warrant consideration, as well as 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.

“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).

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 BOP forwards the request to the U.S. Attorney’s Office and the original sentencing court, 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 DURING 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).

On March 24, 2020, the day the Governor of Michigan issued a statewide stay-at-home order to curb the COVID-19 epidemic, a federal judge in the Eastern District of Michigan released a defendant on these grounds who had been detained pending a supervised release violation hearing. The judge’s reasoning was that the defendant suffered from long-time asthma, and the parameters of the pandemic were unknown to the court at the time it ordered detention.

HELP GETTING OUT OF JAIL OR PRISON DURING COVID-19

Whether you or someone you know is in juvenile detention, county jail, MDOC custody, or BOP, there is a narrow opening to ask the court for early release in light of coronavirus and the COVID-19 pandemic. Our firm is dedicated almost exclusively to criminal law. We work in state courts throughout Michigan and in federal courts around the country. This is a rare opportunity to capitalize on the momentum sweeping the state and the country to reduce the incarcerated population in the face of an unprecedented pandemic. Call Springstead Bartish Borgula & Lynch, PLLC, at (888) 536-5900 for a free consultation.