Getting released from federal prison early due to coronavirus concerns

The coronavirus, also referred to as COVID-19, has changed virtually every aspect of the way we are living our lives, from practicing “social distancing” to shutting down our favorite bars and restaurants. We are also seeing millions of people quarantine themselves or “self-isolate” to prevent getting sick or spreading the coronavirus to others.

Unfortunately, not every person can quarantine or self-isolate, including individuals who are serving time while awaiting trial or serving sentences in the Bureau of Prisons (BOP). Not only are these people stuck in crowded facilities where the coronavirus can spread from inmate to inmate or from staff to inmates, but recent reports indicate that the BOP and other facilities are woefully underprepared to deal with the outbreak of the coronavirus. In fact, some BOP staff have already tested positive for COVID-19 after interacting with inmates.

Inmates who are older, have underlying medical issues, or who are especially susceptible to infection from the coronavirus have especially compelling reasons to be released early to home confinement, as the CDC guidelines warn that people in those groups face much higher mortality rates if infected. While the CDC advises people against gathering in large crowds, these inmates are facing a life-threatening situation confined to a BOP facility with hundreds of other people who are potentially infected.

Fortunately, there are several options that inmates and their loved ones can pursue to seek release from custody during this pandemic. The options available depend on whether the inmate is in pretrial custody or serving a sentence, whether they are elderly or sick, and other factors, such as their security classification. Some of the options involve going through the court, while some are strictly within the discretion of officials at the BOP.

Emergency Bond Motions

People who are in jail awaiting trial can file a motion for their temporary release based on the coronavirus outbreak, even if they have previously been denied bail. Under subsection (i) of 18 U.S.C. § 3142, the judge can issue an order allowing an inmate’s temporary release if the inmate’s release is “necessary for preparation of the person’s defense or for another compelling reason.”

One compelling reason justifying an inmate’s release while they’re awaiting trial, other than the fact that they have not been found guilty of any crime, is the fact that people in jails and prisons face a much higher risk of being infected with COVID-19 than the general population. In a time when the news is reporting that conditions at jails are deteriorating, it makes sense to release inmates from jail so they can quarantine and self-isolate. In fact, many jails have already started doing so on their own accord.

Early Release and Sentence Reductions through the Compassionate Release Program

Inmates who have already been sentenced and are serving time with the BOP have other options available to them. One of these options is the BOP’s Compassionate Release Program under 18 U.S.C. § 3582(c)(1)(A)(i). Under the recently-enacted First Step Act, an inmate can petition the BOP and the court for an early release or a sentence reduction, such as to a sentence of home detention.

There are two ways to win a motion for early release or a sentence reduction under the Compassionate Release Program:

  1. You show you are at least 70 years old, have served 30 years in prison, and there has been a determination made by the Director of the BOP that you are not a danger to the safety of the community
  2. There are “extraordinary and compelling reasons” that warrant an early release or sentence reduction.

As you may have guessed, the second way is the more common way to file a motion for compassionate release. That does not mean it is easy, however, as you have to jump through several hoops before you can ask a judge to release you or reduce your sentence to home confinement.

Before you can file a motion directly with the court, you must “exhaust all of your administrative remedies.” This means that the inmate or their attorney must first request in writing to the warden that the BOP file a motion with the court for early release or a sentence reduction. If the warden says no, the inmate must appeal that decision. If the appeal is denied or if the warden waits more than 30 days to respond to the first request, the inmate can file a motion directly with the court.

In the motion, the inmate must show that: 1) there are “extraordinary and compelling reasons” justifying an early release or sentence reduction; 2) the factors under 18 U.S.C. § 3553(a) support the motion; 3) an early release or sentence reduction would not endanger the community; and 4) the conditions of the inmate’s supervised release can be modified to accommodate their release.

There have been several reasons identified by the BOP and the U.S. Sentencing Commission as “extraordinary and compelling,” including the medical condition of the defendant, the age of the defendant, and family circumstances. During these extraordinary times, when public places are being shut down and the White House is warning us not to gather in groups of 10 or more people, many inmates will have very compelling reasons justifying an early release or a reduced sentence to home confinement.

For more details on the Compassionate Release program, check out our firm’s blog on the requirements and process for seeking early release or a sentence reduction.

Medical Furloughs

Under 18 U.S.C. § 3622, the BOP can temporarily release an inmate “on furlough” for up to 30 days (and perhaps more under certain circumstances) if their release is “consistent with the purpose for which the sentence was imposed,” if the inmate’s temporary release “otherwise appears to be consistent with the public interest, and “if there is reasonable cause to believe that [the inmate] will honor the trust imposed in him.”

18 U.S.C. § 3622 provides a list of reasons for granting a furlough, which includes visiting a relative who is dying or attending a funeral for a relative, obtaining medical treatment, and “engaging in any other significant activity consistent with the public interest.” Inmates who have family members suffering from the coronavirus may petition the BOP for a furlough. Inmates who are especially susceptible to become infected with the coronavirus and want to quarantine or self-isolate also have a compelling reason to seek a medical furlough. Any inmate, however, can petition for a furlough.

There are different categories of furloughs, however, such as transfer and non-transfer furloughs, or emergency furloughs. Based on the amount of time an inmate has served already and has left to serve, they may qualify for a furlough to community confinement or a non-federal facility. Those who have not served much time can only petition for an “emergency furlough,” which requires that they show an “urgent situation,” such as the coronavirus outbreak.

Individuals seeking a furlough should know, however, that the decision to grant or deny a furlough is left up to the discretion of the BOP. Courts cannot weigh in. While an experienced attorney can assist by helping draft a persuasive letter that cites relevant legal authority and lists the reasons why a furlough is necessary for the inmate, the decision will ultimately be left up to the warden, not a judge.

Elderly Offender Program

Under the First Step Act, the BOP has reauthorized its Elderly Offender Home Detention Program. Under 34 U.S.C. § 60541, the BOP can release certain inmates to serve the rest of their sentences on home detention. There are two categories of inmates who qualify for the program:

Elderly Offenders

An “elderly offender” includes any inmate who:

  • Is over 60 years old
  • Is serving less than a life sentence for a conviction that is not a crime of violence, sex offender, or espionage
  • Has completed 2/3 of your sentence
  • Has no prior convictions for a crime of violence, sex offense, or espionage
  • Has no history of violence or of engaging in conduct that constitutes a sex offense or espionage
  • Has never escaped or attempted to escape from a BOP facility
  • Has been determined by the BOP to be “at no substantial risk of engaging in criminal conduct or of endangering any person” while under home detention
  • The BOP has determined that releasing the inmate to home detention would result in a “substantial net reduction to costs to the Federal Government”

Eligible Terminally Ill Offender

A “terminally ill offender” includes any inmate who:

  • Is serving less than a life sentence for a conviction that is not a crime of violence, sex offender, or espionage
  • Has been determined by a BOP-approved medical doctor to be diagnosed with a terminal illness or in need of care at a nursing home or other assisted living facility
  • Has no prior convictions for a crime of violence, sex offense, or espionage
  • Has no history of violence or of engaging in conduct that constitutes a sex offense or espionage
  • Has never escaped or attempted to escape from a BOP facility
  • Has been determined by the BOP to be “at no substantial risk of engaging in criminal conduct or of endangering any person” while under home detention
  • The BOP has determined that releasing the inmate to home detention would result in a “substantial net reduction to costs to the Federal Government”

As with medical furloughs, the decision of whether to the place an elderly or terminally ill offender is solely up to the discretion of the BOP, who can determine that the offender is ineligible or that placing the offender in the program is not in the public interest. Courts have very little power to review the decisions of BOP officials.

An experienced federal criminal defense attorney can help you prepare a persuasive petition to the warden, however, and can help you prove your case whether you are terminally ill, elderly, or need to prove your eligibility despite having a criminal history.

Call Us for Help

If you are an inmate or have a loved one who is an inmate, you should explore what options are available to seek an early release from custody during these trying times. To find out more about what you can do, contact our firm to speak to one of our experienced attorneys. We handle motions for bonds and early release in every federal district across the country.


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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