Since March 2020 COVID-19 has rocked the United States, causing closures of schools, business, churches, athletic facilities and other major activities and institutions in our daily lives. The obvious reason for such closures has been the Center for Disease Control (“CDC”) directive that citizens engage in “social distancing” efforts in order to curb the rapid spread of this unprecedently contagious virus. However, scholars, prosecutors, defense attorneys, and inmates around the globe have noted the gross unavailability of constitutionally sound social distancing efforts.
The lack of availability of these measures has made the spread of COVID-19 throughout the prison system even more troubling and has prompted inmates around the United States to seek release to avoid the consequences of contracting the virus. In the federal arena, inmates have relied on 18 U.S.C. 3582 and U.S.S.G 1B1.13. These provisions essentially provide that the Court may release a federal inmate from custody, prior to the expiration of his sentence, where he or she shows that “compelling” and “extraordinary circumstances” exist and justify release. Courts addressing the numerous motions seeking compassionate release given the COVID-19 pandemic have generally required that the inmate establish a “special risk” above and beyond that facing all inmates who are incarcerated during this pandemic. However, even inmates who have fairly limited health risk factors have been released where they are incarcerated for nonviolent offenses and have minimal time remaining on their sentences. The general trend seems to favor release to inmates who are most vulnerable to experiencing serious health consequences or death if exposed to COVID-19, regardless of the severity of their offense.
Unfortunately, the vast majority of State inmates have no recourse against the violence. For instance, in Florida there is no congruent “compassionate release” statute under which a state inmate could move for release, even if he or she was at extremely high risk for suffering health consequences or death from COVID-19. Arguably, these inmates could seek habeas relief asserting eighth amendment grounds, unlawful conversion of a criminal sentence, or other grounds; however, these types of motions have not been widely filed or tested and it is largely unknown what recourse if any is available to state inmates in the COVID-19 climate.