COVID-19 Compassionate Release Cases Climb; Conditions of
Confinement Cases Begin
by Derek Gilna
As
compassionate release filings continue to grow, so does the body of law
supporting them on the district court level. Although we know of only one
positive appellate decision, a 6th
Circuit case (involving Elkton), and no negative cases, many district court
judges are holding DOJ and the federal prison system accountable for not only
their abysmal responses to COVID-19, but
also to the outright fraud and deception in many government court filings
opposing releases of the sick and terminally ill.
However,
the most dangerous development for the government is the first sign that some
judges will consider 2241 filings, which can be made in the district of incarceration,
rather than a perhaps unsympathetic sentencing court, to win release. In the
case of Martinez-Brooks v. Easter, 20-cv-569, (Dist of Conn.) judge Michael P.
Shea granted a temporary restraining order (TRO ),
"aimed at accelerating the process for evaluating inmates for home
confinement and compassionate release." The issuance of a TRO
essentially is a "game over" for the government's delay and deny
defense, and you can be sure the government will appeal. However, the 2d
Circuit has already shown itself sympathetic to these types of filings.
The two
Presidential campaigns continue to try to outdo themselves on the issue of
sentencing relief, with Joe Biden and
the newest House-passed "HEROES" Act providing for sweeping
changes. Although that latter bill is
DOA in the Senate, it sets down some markers that will become campaign issues
in the Fall, shifting the pressure back to the President to address the issue
yet again, and "up his game."
Regardless
of your politics, the implosion of the
Michael Flynn prosecution makes clear to both the public and Congress the nakedly
coercive tactics routinely used by federal prosecutors to obtain admissions of
guilt render those admissions utterly unreliable — not just in Flynn’s case,
but in every case. The Flynn case shows why that reform should
be a top legislative priority.
In the Ninth
Circuit Senators filed an amicus brief asking the court to rule FIRST STEP Act
provisions lowering mandatory minimums apply at a resentencing be made
retroactive. This would be an important development, and could lead to relief
for thousands of prisoners. United States
of America
We have
also received many inquiries as to whether Compassionate Release and First Step
provisions apply to the undocumented or to those in immigration detention
facilities, and we believe that it does. One study stages, that it is clear
from modeling based upon even the most optimistic treatment of COVID-19
transmission, "72% of individuals
are expected to be infected by day 90," a staggering figure. This "would overwhelm ICU beds within a
10-mile radius," and put surrounding communities at risk, and local media outlets are becoming more
interested in that issue in recent weeks as governmental inaction garners more publicity.
Have a good
week and let not your heart be troubled.
Federal Legal Center, Inc., Derek A. Gilna, JD, Director
113 McHenry, #173, Buffalo Grove ,
IL 60089
(Also in Indiana dgilna1948@yahoo.com
