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Will COVID 19 Unlock Compassionate Release Petitions?

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Will COVID 19 Unlock Compassionate Release Petitions? Will COVID 19 Unlock Compassionate Release Petitions? Charlotte F. Braziel, MBA, MS Saint Leo University Correspondence concerning this article should be Addressed to [email protected] Charlotte Braziel, Criminal Justice Saint Leo University, Saint Leo, FL 33574 Abstract The United States' mass incarceration rates have challenged correctional institutions for several decades. The criminal justice system, policymakers, the courts and the public have sought to enact and/or create policies to reduce the inmate population. Congress has supported early release programs, home confinement, and compassionate release as instruments to reduce inmate populations and costs. The courts, the United States Sentencing Commission, and the Federal Bureau of Prisons are responsible for implementating and managing these programs. In response to the public health threats from the Coronavirus pandemic, Congress, the public, and inmates are demanding that these programs be used to reduce the inmate population and risk to exposure. This paper explores the historical use of early and compassionate release programs and how these options can reduce the health threats from the coronavirus pandemic. Keywords: compassionate release, coronavirus, health care risks and costs 14 Will COVID 19 Unlock Compassionate Release Petitions? More than 500 victims of Bernie Madoff's Ponzi scheme voiced their opposition to Madoffs' motion for a reduction in sentence based on end-stage renal failure, medical complications and a life expectancy of less than 18 months. Madoff, who was responsible for the largest Ponzi scheme in history that left thousands in financial ruin, was sentenced to 150 years in prison. Although Madoff met the statutory requirements for compassionate release, United States Federal Judge Chin stated the court was not obligated to reduce Madoff's sentence. Judge Chin denied Madoff's motion stating when he sentenced Madoff in 2009, "it was fully my intent that he live out the rest of his life in prison" (United States. v. Madoff, 2020, p. 15). Judge Chin continued that he had not seen anything new that would persuade him to alter the sentence; therefore, Madoff's motion for compassionate release was denied (United States v. Madoff 2020). Simultaneously, President Trump's former campaign manager, Paul Manafort sought an early release from prison due to the Coronavirus outbreak. Manafort's attorneys cited Manafort's medical conditions increased his vulnerability to infections and the virus. Although Manafort did not meet the requirements for early release, Manafort was released to home confinement. Why was one motion denied when the conditions for release were met, and another approved when the requirements were clearly not met (Sullivan, 2019)? These two cases exposed the difficulties and complexities in the criminal justice early release and reduction in sentence programs. On March 26, 2020, Attorney General William Barr issued a directive to the Bureau of Prisons (BOP) to "use statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID 19 pandemic" (para. 2). COVID-19 is an 15 acronym for Coronavirus disease 2019 (Kaplan, 2020). Barr emphasized the BOP was able to manage the prisoner population with home confinement. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, includes a provision permitting the Attorney General to expand the release program during an emergency to release prisoners to home confinement when the conditions are materially affecting prison operations (Barr, April 3, 2020). Home confinement does not terminate or reduce an individual's sentence (Reitman, 2020). The Federal Bureau of Prisons April 2019 memorandum states home confinement for low-risk offenders may be used as a place in a home for 10 percent of their sentence or for six months. The language was included in the CARES Act to decrease the prison population during the pandemic. In the March 26, 2020 memorandum, Barr stated there were prisoners at risk from the pandemic, who were identified as non-violent, and were not likely to re-offend, so would be eligible for home confinement. Barr did not discuss the compassionate release program for the ailing and elderly inmate population in his March memorandum. In a subsequent memorandum written on April 3, 2020, in response to COVID-19 outbreaks in three federal corrections institutions and the death of inmate Patrick Jones, Barr directed BOP to prioritize releasing inmates from the three facilitates while protecting public safety (Reitman, 2020). Barr authorized the release of the inmates without electronic monitoring due to the public health threats from the virus. Again, Barr did not discuss any other programs that would facilitate BOP in releasing inmates. Coronavirus The coronavirus pandemic sheds light on the dilemmas and challenges the Bureau of Prisons encounters when attending to the needs of elderly and infirmed inmates. Currently, there are 163,441 prisoners in BOP custody or managed facilities. Over 19,000 federal inmates are 16 over the age of 55( Federal Bureau of Prisons, 2020). People over the age of 55 are considered elderly because of the rapid aging process when a person is incarcerated (Silber et al., 2017). Hollern (2018) states the BOP population, aged 50 and older grew 25% from 2009 to 2015. The growth in the elderly inmate population is attributed to longer sentences, individuals entering the system older and inmates living longer. Elderly inmates exhibit higher instances of disease, chronic health illness and diseases (Psick et al., 2017; U.S. Department of Justice OIG, 2016). The Center for Disease Control (CDC) (2020) identifies individuals over the age of 65, and those with underlying medical conditions such as heart, liver and lung disease, asthma, diabetes, obesity, human immunodeficiency as having a higher risk for COVID 19. Individuals in prison incur an increased risk of exposure due to the conditions in penal institutions. Prisons are overcrowded, access to proper hygiene is limited, and there is no area to isolate. Individuals are unable to practice social distancing, which the CDC cites as instrumental in halting the virus spreading. Inmates lack access to personal protective equipment such as face masks, which can restrict the spread of the virus (Bick, 2007; Miller et al., 2020). On June 16, 2020, the New York Times reports that coronavirus cases have grown the fastest in prisons and jails while the rate of cases flattened across the nation (Williams et al., 2020). These conditions and the rapid growth in the aging population create financial, safety and health care consequences for the system (Hollern, 2018; Kim & Peterson, 2014; Wylie et al., 2018). Elderly Care Age appropriate health care is expensive. An elderly prison population increases the amount of health care provided in a correctional institution (Kim & Peterson, 2014; Reese, 2019) It is estimated that elderly inmates cost three times more than costs for younger inmates (Snyder et al., 2009). Prison health care staff find it problematic to meet the needs of chronically ill 17 inmates, and those who have AIDS, hepatitis B and C, dementia, and depression. Correctional staff must also assist inmates who are unable to perform daily functional living chores. Elderly inmates are less mobile and require expensive medical equipment and medications (Kim & Petersen, 2014; Psick et al., 2017; Reese, 2019; Snyder et al., 2009). According to Hollern (2018), prisons lack the ability, housing and equipment to care for the aged inmate. The Department of Justice Office of Inspector General (OIG) (2016) reported that BOP staff is not adequately trained to deliver services to elderly inmates. The OIG 2016 report, The Impact of an Aging Inmate Population on the Federal Bureau of Prisons states. The OIG found that aging inmates are more costly to incarcerate than their younger counterparts due to increased medical needs. We further found that limited institution staff and inadequate staff training affect the BOP's ability to address the needs of aging inmates. The physical infrastructure of BOP institutions also limits the availability of appropriate housing for aging inmates. Further, the BOP does not provide programming opportunities designed specifically to meet the needs of aging inmates. We also determined that aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released; however, BOP policies limit the number of aging inmates who can be considered for early release and, as a result, few are actually released early. (p.1) Holland et al. (2018) argued that compassionate release is both ethical and cost effective. "The care of terminally ill persons in correctional settings is a human rights and social justice issue" (Holland et al., 2018. p.3). Mitchell and Williams (2017) contended that when a person is denied palliative care or is incarcerated with a severe and debilitating illness, there is a violation of human dignity. In Estelle v. Gamble (1976), the court ruled that the government is obligated to 18 provide medical care to inmates. Failure to do so will inflict "unnecessary suffering." The deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain" in violation of the 8th Amendment (Hollern, 2017). In United States v. Dimasi (2016), the court advised: "the Eighth Amendment guarantees inmates in Bureau of Prisons custody adequate medical
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