Update, April 14: Federal Courts Begin Implementing Proactive Procedures Addressing the Spike in Demand for Prisoners’ Motions f


In response to the ongoing COVID-19 emergency and widespread reports of the virus reaching prisons, the Massachusetts Federal Courts have issued a COVID-19 related order “Concerning Appointment of Counsel and Motions for Early Release Under 18 U.S.C. § 3582(c)(1)(A).” The referenced statute (18 U.S.C. § 3582(c)(1)(A)) permits courts, upon motion, to reduce a term of imprisonment and, optionally, impose a term of probation or supervised release if it finds that there are “extraordinary and compelling reasons [that] warrant such a reduction.”

In anticipation of there being many such motions prompted by the COVID-19 pandemic, the District of Massachusetts Order seeks to streamline the process whereby the local Federal Public Defender Office (“FPD”) can file individualized motions on behalf of at-risk inmates who have reached out seeking the FPD’s help. The order does that primarily by requiring that the local U.S. Probation Office (which is an arm of the court) provide to the FPD, upon the FPD’s request, the Presentence Report (“PSR”) for any prisoner sentenced in that district.

PSRs are lengthy, defendant-specific reports produced by the Probation Office for the Court’s benefit at the time of sentencing, affording courts an ostensibly objective portrait of each defendant with virtually all their background information, including childhood, family life, educational background, career history, health condition, financial condition, and social and civic engagement, among other areas. Given the breadth and general reliability of their content, such reports would be invaluable to reviewing attorneys asked to file motions for at-risk defendants and to do so as quickly as practicable, which motions must argue that there are “extraordinary and compelling reasons” warranting a specific prisoner’s release.

The order’s allowance for this turnover of PSRs is limited, somewhat, by the requirement that the FPD only make requests for them when it has a “good-faith basis for believing that the specific prisoner is a potential candidate for early release.” Further, given the confidential nature of PSRs, the order provides that the FPD utilize the PSRs exclusively for the purposes of identifying candidates for early release, determining their eligibility for same, and, when “appropriate,” seeking such relief on their behalf, and to destroy all copies of a PSR if it either refers the matter to outside counsel or determines that a given prisoner has “no colorable claim” for early release.

While the order also addresses other contingencies, its primary import is that courts are being proactive with respect to the ways the pandemic crisis is manifesting in prisons, doing what they can to facilitate others’ filing, and thus their consideration, of motion for early release.

Prisoners in this district would certainly benefit from an analogous order being entered by the District of New Jersey. That being said, at-risk prisoners or their friends and family can themselves be proactive by speaking with private counsel about bringing a motion for early release and relaying to them all the relevant information needed to prepare same.

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