Opinion: Because of COVID-19, It’s Less Safe Behind Bars. Here’s How Federal Prisoners Can Petition to Get Their Sentences Reduced.

The coronavirus is scary for everyone in the world right now, but it is especially terrifying for those with loved ones in the prison system, as we know those incarcerated are more at risk. Behind bars, it’s impossible to practice safety measures such as “social distancing,” and some inmates are speaking out about a lack of treatment for the infected. As a criminal defense attorney who handles many post-conviction cases, I see the toll the fear is taking. Luckily, federal law may provide some avenues for relief for those in federal prisons, of which Texas is home to many.

When assessing the possibility of early prison release the first question is: How much time is left on the incarcerated person’s sentence? If there are 12 months or less remaining, then it’s possible for the Bureau of Prisons to transfer the person to “community corrections.” This refers to reentry centers (also known as halfway houses), located all over Texas, and house arrest. Prior to Congress passing the CARES Act a few weeks ago, the maximum amount of time that a person could serve under house arrest was the lesser of 10% of their sentence, or six months. For example if the person was sentenced to 36 months (3 years) in federal prison, they could be moved to “community corrections” after serving two years but would only be eligible to serve about 3.5 months under house arrest (the other 8.5 months would have to be served at a reentry center). However, because of the new CARES Act, the Bureau of Prisons can now permit a prisoner to spend the entire 12-month period of community corrections under house arrest.

An inmate, or their attorney, can petition the Bureau of Prisons to release the person to house arrest and/or file a motion with the court to recommend that the person receive the maximum amount of time in community corrections and that this time be served under house arrest. This may help assuage your fears of a coronavirus outbreak in federal prisons.

On the other hand, if the incarcerated person has more than a year left on their sentence, they can apply for “compassionate release,” which is a procedure whereby the defendant returns to the sentencing judge to consider “extraordinary and compelling reasons” that weren’t apparent at the time of sentencing. While compassionate release has traditionally been used to reduce sentences for elderly people or those suffering terminal illnesses, the coronavirus pandemic would apply as an “extraordinary and compelling reason.” The court would likely consider certain factors, such as:

• The person’s age and health

• The total number of coronavirus cases in the federal prison system

• Whether the person can be safely incarcerated

• The person’s release plans

• Overall community safety

In order to apply for compassionate release from federal prison, a request must first be submitted to the warden of the prison where the inmate is currently housed. This request must contain information about the “extraordinary and compelling reason,” along with proposed release plans, including where the person will reside and how the person will support themselves.

If this request is granted, then the Bureau of Prisons will file a motion with the sentencing judge asking for compassionate release to be granted. If the request is denied, then the person who is incarcerated can file a motion with the sentencing judge asking for compassionate release. Alternatively, if the warden fails to respond to the request within 30 days of receipt, the inmate can file a motion with the judge.

Community corrections and compassionate release can also work in conjunction with each other. For example, if the person has more than a year left on their sentence and the judge is wary of releasing them altogether, the judge could reduce the sentence to 12 more months, and then the person would be eligible for house arrest under the new community-corrections law.

The bottom line is that there are avenues to secure a person’s release from federal custody, where the risk of exposure to the coronavirus is unacceptably high.

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Chris Perri is a criminal defense trial and appellate attorney based in Austin, Texas. He is licensed to practice both federal and state law.

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