The world doesn’t know yet how best to handle the new threats posed by COVID-19 (also known as SARS-CoV-2 and the novel coronavirus), and so it shouldn’t be a surprise that the Federal Bureau of Prisons (BOP) is likewise scrambling.

But I would like to disseminate what I know so far. My sources are maybe no more reliable than any others out there right now, but this is an effort to try to give the information most relevant to federal prisoners and their families. And the situation changes from one day to the next, both as to the characteristics of COVID-19 and as to how the BOP is handling the situation.

My sources are what I believe are the most reliable news reports, raw data from various sources, and reports from my own clients in prison and families of inmates who have contacted me in the last three weeks.

First, information from the prisoners themselves is limited. Inmate phone time and access to email is limited, as prison officials attempt to limit the exposure of inmates who stand in line in close proximity to one another to wait to use the phone and to limit contact transmission through computer keyboards, while sitting in the space previously occupied by the inmate who sat there before him or her.

Second, information that is coming out is mixed, both from inmates and from the BOP itself. It seems that some prisons are rushing releases through, while others are dragging their feet, releasing as few as possible.

Third, some information coming out is unreliable, including data on the number of cases in the prisons, with some reporting very few (the official numbers), and allegations by the union for the prison guards that the numbers are much, much higher.

What we do know is: despite the ideal that what happens across a unified system like the Federal Bureau of Prisons should be uniform, it is not. Reports from six different prisons demonstrate that there are six different approaches to how individual prisons are handling their unique circumstances. There may be many reasons for this (number of sick inmates, how well the individual prison is set up to deal with medical needs of any sort, security level, etc.). Whatever the reason, it is not possible to say how any prison is likely to handle any situation related to this illness and the threat of exposure within the BOP.

Further, what we know is that the situation changes on a day-by-day basis. For example, a number of inmates have been told that they are being quarantined because their cases have been approved to leave on home confinement, only to be returned to general population, being told that there was a mistake and that they weren’t going home after all.

There is even a wide variation in how some prisons are handling quarantines. Some are putting inmates in Special Housing Unit (often called “SHU” or “the hole”, usually reserved for inmates who have committed infractions within the prison), which is hard for an inmate, but sometimes still in close quarters with inmates who aren’t in quarantine. Other prisons are “quarantining” inmates right in their own cells, but still with others who are not in quarantine.

There are unconfirmed reports that some prisons are only releasing those with very short periods left on their sentences (100 days or fewer in some, six months or fewer in some, and still others twelve months or fewer), while others are merely giving priority to those. Some, again unconfirmed, are reporting that some prisons are giving priority to those who have less time remaining on their sentences, without regard for the underlying health conditions of any.

There are many, many other scenarios I’ve run across, but the bottom line is that nobody seems to know what is actually going on system-wide.

This is further complicated by unconfirmed reports that inmates are being told not to ask about whether they may be under consideration for release, but just to sit quietly and wait until the prison brings it up with them. This means many who may be eligible believe that they should not speak up for themselves, for fear of getting in trouble or for fear of retaliation for seeking to take action to try to be released, if they have some grounds for asking for release.

From the legal perspective, we believe we have solid footing for a claim that certain individuals are clearly eligible for release that are not being released. While the Attorney General’s memos that direct the BOP to release certain eligible inmates seem clear who should be released, a careful reading reveals that the BOP has been left a tremendous amount of latitude to decide for themselves who should be released.

What I see is nearly arbitrary application of the early-release, with no obvious rhyme or reason behind what is happening. What I believe is that this will continue, unless the individual inmate who believes that he or she is eligible hires an attorney to advocate for them, to make sure that, if they have any factor in their favor, it is brought to the attention of those who make the release determinations.

Those who should seek such help are those with a significant pre-existing medical condition, like high blood pressure (hypertension), diabetes, obesity, asthma, kidney or liver problems, as well as those who are older. Further, the closer one is to the end of their sentence already, the more likely that they will be released, if their matter gets the attention it deserves.

An experienced attorney can evaluate the inmate’s specific situation and decide the best course of action for the individual, which could be a request under the Barr memo, a compassionate release request, or some other specific action. Further, there may be a variety of release options available (depending on the situation) beyond just home confinement.

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