By Timothy E. Warriner, Certified Criminal Law Specialist, State Bar of California
Due to the COVID-19 risk in our jails and prisons, courts and practitioners are exploring ways to avoid incarceration. Here are some strategies that attorneys can use to help clients avoid, or at least delay, custody during the pandemic.
Aggressively pursue pretrial release and renew bail motion if one was previously denied. Release motions should be accompanied by an expert declaration. There are two declarations that can be used (Dr. A. Beyrer and Dr. B Williams). The Eastern District Federal Defender’s office has done a great job marshalling resources to assist attorneys seeking their client’s release.
Release Pending Appeal:
If you are post-sentencing and appealing a conviction, you should move for release pending the appeal. This may be a means to delay any jail or prison sentence until our custodial facilities are safe.
Delay Self-Surrender Date:
Defendants should move to extend the date for self-surrender. Indicate in the motion that defendant reserves the right to file an additional request should the public health danger persist.
Federal Prison Release:
The CARES Act has sections intended to protect persons in BOP custody including expanded home confinement. Previously a person could be placed in home confinement for the shorter of 10% of a person’s term or 6 months. Under the CARES Act the Director can increase that time period to whatever is deemed appropriate and can be done if the Attorney General finds that emergency conditions will “materially affect the functioning” of the BOP.
AG Barr’s directive:
AG Barr issued a March 26 directive to prioritize home confinement in response to the pandemic. The directive states “there are 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 BOP facilities. I am issuing this Memorandum to ensure that we utilize home confinement, where appropriate, to protect the health and safety of BOP personnel and the people in our custody.” The directive states that home confinement should only be granted where it is “likely not to increase the inmate’s risk of contracting COVID-19.” This language means that an inmate should have a well-thought-out release plan to include a residence to quarantine in.
Compassionate Release–18 U.S.C. 3582(c)(A):
Allows the court on motion of the BOP, or on the defendant’s motion after exhausting administrative rights to appeal a failure of BOP to bring a motion, to reduce the term of imprisonment if it finds extraordinary and compelling reasons warrant the reduction.
California State Prison Release:
Superior Court’s Power to Recall Sentence:
The Superior Court may recall a sentence, within 120 days of the commitment on its own motion, or at any time upon the recommendation of the CDCR, Board of Parole Hearings, the county correctional administrator, or the District Attorney. (Pen. C, 1170(d)(1).) I am aware of one case where a District Attorney’s office has reached out to an elderly/infirm inmate requesting evidence that may justify the recall of a sentence.
Pardon and Commutation of Sentence:
Now is the time to apply for a pardon and/or commutation of sentence. On March 27 Governor Newsom granted 5 pardons and 21 commutations. The Governor’s action suggests that pardon and commutation are seen a means to reduce the prison population during the pandemic. One of my clients was the recipient of a commutation and is now eligible for parole.
The area of COVID-19 release is a rapidly developing area of law. Please feel free to contact me about resources to help you, or to discuss a case. firstname.lastname@example.org