By Susan Stone, Kristina Supler & Melissa Yasinow

covid-19 incarceratedThe COVID-19 pandemic is a dangerous time for the 175,000 incarcerated individuals in the Federal Bureau of Prisons (BOP) and the thousands of people who move in and out of federal prisons every day. Incarcerated individuals often have significant health issues, and problems with overcrowding and limited medical care are well-documented even during the best of times.

To make matters worse, FCI Elkton, a low security federal prison in Lisbon, Ohio, has been particularly hard hit. Five Elkton inmates have already died from COVID-19, and the BOP is reporting that ten inmates and nine staff have tested positive. According to Elkton’s union president, however, the BOP’s report is inaccurate. Instead, as many as 67 inmates have either tested positive or are showing symptoms, and 14 are on ventilators. There are also only 83 tests at Elkton, even though there are more than 2,400 incarcerated individuals at the facility.

The dire circumstances at Elkton and at federal prisons across the country raise significant legal issues, including cruel and unusual punishment. Convictions, particularly for non-violent offenses, should not be death sentences. At least one federal judge has declared that “the best—perhaps the only—way to mitigate the damage and reduce the [COVID-19] death toll is to decrease the jail and prison population by releasing as many people as possible.”

On March 26, 2020, U.S. Attorney General Bill Barr issued a memo requesting that the BOP review all inmates who have COVID-19 risk factors and grant them at-home confinement based on specific criteria. Barely one week later, on April 3, 2020, Attorney General Barr issued a second memo ordering the increased use of at-home confinement, with priority given to those at Elkton and two other hard-hit federal prisons.

A person’s ability to obtain at-home confinement or early release depends upon their unique circumstances including age, health, remainder of sentence, conduct during incarceration and nature of conviction. Incarcerated individuals should request at-home confinement as listed in the Attorney General’s memos. However, this is not the only option that incarcerated individuals should consider.

Incarcerated individuals who are at least 60 years old may qualify for the Elderly Home Detention Pilot Program, and the most medically vulnerable individuals, including those who are in need of nursing home care, may qualify for release under the First Step Act. Also, those who are near the end of their sentences may already qualify for at-home confinement, regardless of age or at-risk status. It is important to speak with an attorney to see if you qualify for these specific release programs.

Finally, incarcerated individuals who do not qualify for these release programs still may qualify for at-home confinement during the COVID-19 pandemic. Under 18 U.S.C. §3582(c), an incarcerated individual may receive “compassionate release” for “extraordinary and compelling reasons,” including but not limited to their personal health circumstances or need to take care of a dependent child or spouse. Also, an incarcerated individual may be released to a specific location for up to 30 days if it is “consistent with the public interest.” Arguably, it is in the public interest to stop the spread of COVID-19.

This is a scary and unprecedented time, but we must not forget or fail to protect each other. Incarceration should not pose a threat to anyone’s health or safety, and we are here to help. For more information about release and at-home options for incarcerated individuals, please contact Criminal, Cyber & White Collar Defense Attorneys Kristina Supler (kws@kjk.com or 216.736.7217) or Susan Stone (scs@kjk.com or 216.736.7220).

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