Third Circuit issues a ruling that could have a big impact on whether many prisoners win release due to the COVID-19 pandemic

United States v. Raia—criminal / covid-19—denial—Smith

The Third Circuit yesterday denied a prisoner’s motion for compassionate release based, in part, on the inmate’s risk of COVID-19 infection. It’s an important opinion that I believe will have broad and immediate impact, but it appears to me to contain an error.

[Disclosure: I’m active in Covid-19 release litigation on behalf of inmates, but not this case and not any that involve the issue that arose here.]

“Compassionate release” is a shorthand that refers to statutory authority to release inmates from prison early, before the end of their original prison terms, for specified reasons. Before 2018, the only ones allowed to request compassionate release for a prisoner was the Bureau of Prisons; the First Step Act changed that, allowing prisoners to file compassionate-release motions for the first time.

But there’s a catch: before they’re allowed to file their motions for compassionate release, they have to seek it from the BOP first. The statute (18 USC § 3582 (c)(1)(A)) says the court can grant a reduction only after either “[1] the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or [2] the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is shorter.” (Emphasis mine.) The basic idea is that, if the prison doesn’t promptly grant the request, the prisoner can either [1] keep on trying to get the prison to release him, or [2] go right to court.

But the second sentence of today’s opinion turns the statute’s “or” into an “and,” stating: “But before they make such requests, defendants must ask the Bureau of Prisons (BOP) to do so on their behalf, give BOP thirty days to respond, and exhaust any available administrative appeals.” (It appears to repeat the mistake later, stating that the defendant failed to exhaust because “BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.”)

Application of the 30-day rule is a big deal. Compassionate release is the most broadly applicable tool available to courts, by far, to release prisoners during the pandemic. The more rigidly courts interpret the rule, the more people in prison die. I don’t envy judges having to make these calls with stakes so high and time so short.

Anyhow. The court denied the motion because (1) district courts must decide such motions first and the court here hadn’t, and (2) release would be futile because of exhaustion. Did the and/or issue change the outcome on futility? I’m not sure.

The court closed with this notable paragraph:

We do not mean to minimize the risks that COVID-19 poses in the federal prison system, particularly for inmates like Raia. But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread. See generally Federal Bureau of Prisons, COVID-19 Action Plan (Mar. 13, 2020, 3:09 PM), Given BOP’s shared desire for a safe and healthy prison environment, we conclude that strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added—and critical—importance. And given the Attorney General’s directive that BOP “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” we anticipate that the exhaustion requirement will be speedily dispatched in cases like this one. Memorandum from Attorney Gen. to Dir., Bureau of Prisons 1 (Mar. 26, 2020), So we will deny Raia’s motion.

Joining Smith were Ambro and Chagares. The matter was decided without oral argument.


The Court issued two other opinions today. I’ll be quick.

US v. James—criminal—affirmance—Shwartz

The Court today granted panel rehearing and issued an amended opinion still affirming the fraud conviction of a former Virgin Islands senator and author of the Manly Manners trilogy. Judge Shwartz’s rehearing order gloriously and majestically identifies where the panel made changes to the prior one. (The order says that “[t]he majority” made changes to at specified places, which could mean a judge once planned to dissent but more likely just refers to the majority it took for panel rehearing to be granted.)

Shwartz was again joined by Smith and McKee.


US v. Folk—habeas—affirmance—Porter

The Third Circuit affirmed the denial of a 2255 motion raising a career-offender issue. The court also declined to issue a certificate of appealability for a challenge to an aggregate drug weight.

Joining Porter were Hardiman and Phipps.