Thursday, April 30th, 2020

Compassionate Release and Covid-19

Numerous district courts in the Second Circuit and across the country have used the expanded compassionate release provision of the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), to release at-risk defendants from custody during the Covid-19 crisis. These courts have found that the ongoing Covid-19 pandemic, combined with underlying medical issues that increase a defendant’s risk from the virus, can constitute “extraordinary and compelling” reasons to reduce the defendant’s sentence and order release from custody.

The national Federal Defenders website and Douglas Berman’s Sentencing Law and Policy blog are two great sources of information about these compassionate release grants.

Here I wanted to highlight a few notable decisions within the Second Circuit related to this issue.

In United States v. Gerard Scparta, No. 18 Cr. 578 (AJN), ECF Dkt. 69 (S.D.N.Y. Apr. 19, 2020), Judge Nathan granted a compassionate release motion of a 55-year old defendant who suffers from high blood pressure, high cholesterol, sleep apnea, and hypertension. The court found that it could waive § 3582(c)(1)(A)’s 30-day waiting period and hear the motion, and describes FCI Butner’s “Kafkaesque” “14-day quarantine” process—which is neither a true “quarantine” nor actually limited to 14 days—before releasing inmates to home confinement.

Earlier this week, in United States v. Jeffrey Musumeci, No. 07 Cr. 402 (RMB), ECF Dkt. 58 (S.D.N.Y. Apr. 28, 2020), Judge Berman similarly granted a contested compassionate release motion, based on the defendant’s medical conditions, including diabetes and high blood pressure. Judge Berman’s opinion touches on the BOP’s quarantine policy, where the defendant’s inability to mentally withstand staying in the prison’s Special Housing Unit (essentially solitary confinement) for a 14-day “quarantine” caused the BOP to “arbitrarily” postpone his home confinement release date by months. The court found that it could waive the 30-day waiting period in § 3582(c)(1)(A) and granted immediate compassionate release.

Like these courts, several other district courts in the Second Circuit have concluded that judges can waive § 3582(c)(1)(A)’s 30-day waiting period, given the exigencies created by the Covid-19 pandemic. See, e.g., United States v. Sassine Razzouk, No. 11 Cr. 430 (ARR), ECF Dkt. 136 (E.D.N.Y. Apr. 19, 2020); United States v. Livingston, No. 18 Cr. 416 (ENV), 2020 WL 1905202 (E.D.N.Y. Apr. 17, 2020); United States v. Russo, No. 16 Cr. 441 (LJL), 2020 WL 1862294 (S.D.N.Y. Apr. 14, 2020); United States v. Haney, No. 19 Cr. 541 (JSR), 2020 WL 1821988 (S.D.N.Y. Apr. 13, 2020);  United States v. Zukerman, No. 16 Cr. 194 (AT), 2020 WL 1659880 (S.D.N.Y. Apr. 3, 2020).

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