In July, the Journal of the American Medical Association published a research letter asserting that inmates are five and a half times more likely to contract coronavirus and three times more likely to die from coronavirus than the general population. Jails and prisons are like nursing homes and cruises, all of which have experienced outbreaks due to the infeasibility of social distancing; these facilities house individuals in close quarters and do not generally allow them to leave the confines of the property. For more than a decade, health officials have warned about the dangers of virus outbreaks in jails and prisons, yet little was done to prepare for the possibility of a pandemic like COVID-19. Given the lack of preparation, there were limited options to stop the spread of the virus once it arrived. Facilities have run out of the basic necessities to protect against the virus, such as masks and soap, and hand sanitizer is banned in many detention facilities as most of it is alcohol-based.
In a letter to congressional leadership on August 4, 2020, The Leadership Conference on Civil and Human Rights, the American Civil Liberties Union, and the Federal Public and Community Public Defenders urged Congress to expand courts’ authority to release individuals in the custody of the Federal Bureau of Prisons by ensuring that compassionate releases may be sought, and that courts consider these motions more efficiently during the pandemic. Compassionate release programs are designed to grant early release to incarcerated individuals whose circumstances diminish the need for continued imprisonment. Compassionate release differs from home confinement, which has also been encouraged to reduce inmate populations during the pandemic. Home confinement allows current inmates to complete the remainder of their sentences from the comfort of their own home while still being under correctional supervision. Compassionate release, on the other hand, releases an individual from custody by reducing their sentence to time served. Some form of a compassionate release program is utilized by the federal government, forty-nine states, and the District of Columbia.
Compassionate release is one way to immediately protect incarcerated individuals and prevent the further spread of the virus by reducing the population of inmates. However, compassionate releases are reserved for those individuals who are facing advancing age, imminent death, debilitating medical conditions, or other severe circumstances that make continued incarceration unnecessary or immoral. While coronavirus threatens the health and safety of all inmates, only those who are deemed high-risk may be eligible for compassionate release. However, federal prison wardens ignored or denied over 98 percent of compassionate release requests, including those made by medically vulnerable inmates. The process of requesting compassionate release is lengthy and complicated, as illustrated in the image above; delays in receiving paperwork and getting approval from various prison officials leads most petitions to fail. Inmates have a better chance of being granted a compassionate release by asking for a judge’s approval in court, but they must first ask the warden for approval. Even when prison officials support compassionate release, they are not initiating the process and it is up to the inmate to figure it out for themselves. The goal of immediate release of inmates is thus thwarted by the mode of release itself.
Originally, compassionate release was not intended to decrease incarceration at the rate now required to combat coronavirus, so changes must be made to make it a viable resource. It is not reasonable to rely on compassionate release as the only forum for protecting inmates from the pandemic, but it can offer relief for those who are at an increased risk of developing complications from COVID-19. For high-risk individuals whose release does not pose a serious threat, a petition for compassionate release may be their ticket to freedom. The pandemic is unlikely to subside in the near future, so it is probable that petitions for compassionate release will continue to be filed at a high rate and advocates will continue to push for changes to improve the process. There have been calls to streamline the process for years, but organizations are now pressuring officials to make more substantive changes in the face of coronavirus.