BOP Releasing Few Inmates and Changing Rules as Crisis Worsens

The Marshall Project has recently reported that few inmates in BOP custody have been released since Attorney General issued a memorandum urging the BOP to maximize the number of inmates it releases to home confinement in order to curb the significant outbreak of COVID-19 among its facilities.

The BOP website currently discloses that the BOP has only released 2,431 of its roughly 140,000 inmates, less than 2% of its inmate population. Meanwhile, the BOP reports that over 3,379 inmates have tested positive for COVID-19.

In reality, the count of confirmed cases of COVID-19 is almost certainly much higher. The BOP is not testing all of its inmates, reserving most of its tests for inmates showing symptoms. The BOP has reported that, of the limited number of inmates who have been tested, 70% of them have tested positive. Meanwhile, mass testing conducted in state prisons have revealed mass infections. If such mass testing was conducted by the BOP, we would likely see similar results among its facilities.

At least one of the reasons for the slow drip of releases seems to be bureaucratic, as the BOP keeps changing its standards regarding which inmates are eligible for early release. The BOP initially issued guidance indicating that old inmates or inmates with medical conditions were eligible regardless of how much time they served. The BOP abruptly changed these standards, requiring inmates to complete 50% of their sentences to be eligible for release. This abrupt shift led to inmates who were told they were being released suddenly being pulled out pre-release quarantine to be returned to custody. In fact, our firm was able to secure the release of one of these inmates that was told he was being released right before being yanked out of pre-release quarantine. Days later, perhaps due to the pushback to the lack of notice, the BOP reversed its guidelines, directing facilities to consider the amount of time served but not to make it a disqualifying factor.

As the COVID-19 pandemic worsens, the BOP continues to release only a fraction of its inmates. Case managers and unit managers often don’t know whether their assigned inmates are eligible under the BOP’s ever-changing standards. Neither do the inmates, as rumors swirl among inmates and staff regarding these policies. As a result of the uncertainty and the BOP’s mixed signals, inmates hoping for release under the CARES Act may be better off filing a motion for compassionate release, where the Court can intervene and modify the inmate’s sentence.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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