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Courts Reluctant to Order “Compassionate Release” of Inmates During COVID-19 Pandemic

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Federal and New Jersey State Courts are reluctant to release prison inmates in the face of the COVID-19 outbreak, citing what they deem to be adequate measures by prison authorities to protect inmates and to grant early release under existing programs.

On June 4, the Supreme Court of New Jersey unanimously denied an application for the release of inmates with less than 12 months of their term left, inmates eligible for parole, and inmates at risk of serious illness or death, which was filed by the American Civil Liberties Union of New Jersey (“ACLU-NJ”) and Office of the Public Defender (“OPD”).

The Court noted that Executive Order 124 (the “EO”), issued by Governor Murphy after the motion was filed, directed the New Jersey Department of Corrections (“DOC”) to consider parole or emergency temporary medical home confinement (medical furlough) for certain classes of inmates: those 60 and older, those with underlying medical conditions that put them at risk of serious illness or death from COVID-19, those who have been denied parole within the last year, and those within 90 days of parole eligibility or maximum sentence. Of 2,500 inmates eligible and willing to participate in the EO program, more than 400 have been released to date. The Court deemed the efforts resulting from EO to be sufficient to deny the broad relief requested by the motion. However, the Court ordered additional provisions to protect due process rights. First, inmates must be permitted to submit a written statement to support their request for furlough, and the OPD must be provided with a list of eligible inmates. Second, inmates who are denied medical furlough must be provided with an individualized written statement of reasons for the denial (inmates who are denied parole are already provided with such a statement). Third, inmates must be allowed to respond in writing to the statement of reasons, and the DOC must consider such response before issuing a final decision. Finally, an inmate may appeal a final decision to the Appellate Division, with the standard of review being deferential to the agency’s decision, which will stand unless deemed arbitrary, capricious, or unreasonable. The Court ordered such appeals to follow an expedited schedule, with briefs due within three days of the notice of appeal and a decision due three days later.

The Court noted that Court Rule 3:21-10(b)(2) still authorizes courts to modify an individual inmate’s sentence due to illness or infirmity, including inmates who are not eligible for relief under the EO. The Court also held that inmates seeking relief under the Rule need not exhaust administrative remedies, such as the EO parole/medical furlough review, to apply to the court for relief. The Court also ordered an expedited schedule for such motions, with a return date five days after filing and a decision three days later.

Federal courts in the District of New Jersey also have largely denied requests for relief. It is reported that some fifty COVID-related motions for modifications of sentence have been filed in the District. It is believed that approximately four were unopposed by the U.S. Attorney’s Office and granted by the court to date, and only one motion which the USAO opposed has been granted.

The reluctance of courts to release state and federal prison inmates comes after early successful efforts to release county jail inmates. In March, a motion filed by the ACLU and OPD resulted in a Consent Order, joined by New Jersey State agencies, to release inmates who were serving county jail time as a condition of probation or for municipal court convictions of fourth-degree and lower offenses. (See our previous post.) Approximately 700 county jail inmates were released within a week of that Consent Order.

The recent court denials do not foreclose all hope for at-risk individuals who are incarcerated. The courts remain an option for potential relief on a case-by-case basis. Inmates who may be eligible for relief should obtain counsel to advocate on their behalf with prison officials and courts to protect their rights, their health, and their lives.

As of June 5, 2020, the U.S. BOP reports that 5,674 inmates have tested positive for COVID-19, 1,993 are currently positive, 3,681 have recovered, and 75 have died. The N.J. DOC reports that 2,155 state prison inmates and 777 staff have tested positive for COVID-19, and 46 inmates have died.

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