Federal and Indiana State Considerations for Incarcerated Persons During the COVID-19 Pandemic

As we’ve discussed in previous blogs, the current environment we are living in with COVID-19 and individuals who find themselves in custody (be in following an arrest, during the pretrial pendency of a Federal or State matter, sentenced to a term in county jail, the Indiana Department of Corrections, or the Federal Bureau of Prisons) is one where the heightened level of fear for infection is extremely real.  The numbers of people currently infected with COVID-19 are staggering, with a real fear for a false sense of not being infected due to most of us not experiencing any or just minor signs or symptoms.  This generally explains the rationale behind stay at home orders or other social distancing recommendations (i.e. limited our interaction with other people, keeps the spread of the virus from other people, at-risk individuals or otherwise).  So one would clearly just conclude if we close the jails and prisons to outsiders that all will be well, right?

If we shut down all arrests on new criminal matters or outstanding warrants, sure that could work, but it’s impractical to even think of such a thing when we discuss crimes of violence or those that place the public safety at risk.  So that means we will have an established population of individuals inside these facilities who may or may not have COVID-19, interacting with new individuals brought in that may or may not have COVID-19.   The best analogy we attorneys are hearing when describing this situation is that jails, prisons or other detention centers are essentially a  “human petri dish” for COVID-19 to spread freely.  Currently there are approximately 26, 891 individuals housed within the Indiana Department of Corrections, 163, 940 within the Federal Bureau of Prisons, and a range of a small few to thousands within the various county jails throughout the state of Indiana.  Many of these individuals are within the “high-risk” group due to age, pre-existing conditions, or if not, still could experience symptoms of COVID-19 despite not being “high-risk.”  It is quite clear that with such numbers there exists a very serious risk for these facilities to become overrun with infected individuals and even cause more strain on our hospitals needing to treat individuals.  So what can be done?

Pretrial Release in State Court

Currently various counties throughout Indiana are doing an amazing job to have law enforcement issue summons or general citations for most misdemeanor and certain low-level felony offenses to limit the number of new arrestees coming into jails.  Many courts are working hard to streamline pretrial release screenings or the processing of bonds so to limit the amount of time anyone is in jail.  However some individuals arrested on higher level offenses or those with higher bond amounts, are forced to sit and wait for something to be done.  Within our firm we are working expeditiously to file immediate motions for bond review or motions to release, citing the purposes behind bail/bond and that other release conditions (i.e. GPS monitoring or Home Detention) provide avenues to lower to jail population and hopefully prevent a disaster scenario should an outbreak occur.  But what about individuals who have been sentenced?

Sentence Modifications

For individuals sentenced to executed sentences in an Indiana county jail or Indiana Department of Corrections, they must file a Petition to Modify Sentence on their case.  But bear in mind that each individual case carries with it multiple considerations as to if a petition can even be filed (such as, but not limited to, “set-term” plea agreements, certain offenses or levels of offenses have sentences that must be served in a facility, and offenses that fall under the definition of “violent criminal”  require the consent of the prosecutor), when a petition may be filed (a non-violent criminal can only file 1 time in any 365-day period, and a violent criminal can file 1 time during the first 365-days of their sentence, afterwards they need the consent of the prosecutor), and what is required (individuals in the Department of Corrections may require a conduct report, whereas agreed modifications between the prosecutor and attorney can be filed and granted without a hearing or any conduct report).  If a prosecutor does NOT agree to a sentence modification, that does not mean the opportunity to release is gone if the individual is terminally ill due to COVID-19 or has an underlying condition that may be exacerbated by COVID-19.

Compassionate or Medical Release

Indiana currently does not have any mechanism for an individual incarcerated in the Indiana Department of Corrections to petition a court directly for what is colloquially known as “compassionate release.”  But there are ways to obtain release from a facility without a sentence modification.  One such way is to petition the Indiana Department of Corrections (through the facility warden) through their Administrative Policy 02-04-104(II)(G) for release. (Note: This policy provides for temporary release in all other instances of up to 5 days, whereas for terminally ill individuals, the release would operate the same as a placement modification from prison to home detention or probation if permissible).  This section was put into place for those incarcerated individuals who fall terminally ill during the course of their executed sentence.  Given the extraordinary nature of COVID-19 and high-risk it places upon those with underlying medical conditions that make them “high-risk” to fall terminally ill the same logic can be applied for such release.   This administrative measure is not available to all individuals and carries with it the potential to take longer for a determination, higher chance of denial, with less chance for any court intervention outside of a potential appeal once all administrative measures have been exhausted (and that would NOT be quick at all).

The second possible avenue is to apply for Special Medical Clemency through the Indiana Parole pursuant to 220 Ind. Admin Code 1.1-4-1.5.  This avenue does not require a specific medical condition to qualify (i.e. one that is terminal or not) so individuals with underlying conditions or those of an age that are “high-risk” would petition that this classification places them in that category of special medical condition.  There is also no disqualifier for specific criminal offenses, so any individual can petition.  Upon petitioning to the Parole Board, the Board looks for a recommendation from the Commissioner of the Department of Corrections.  If the Commissioner declines the petition, the Board can do the same and things end there, or the Board can proceed to an investigation.  The investigation focuses on: 1. The seriousness of the medical condition, 2. Whether the individual can be treated for the condition while incarcerated, 3. Whether the condition effectively prevents any future serious criminal activity, 4. The background nature and circumstances of the offense leading to incarceration, and 5. Any other holistic factors about the individual (such as age, psychological/psychiatric condition, employment history, victim opinions, family/friend opinions sent to Board).  The petition does not require a hearing and the administrative code does provide for the Board to waive “full community investigation” if time is of the essence.  Their recommendation and all material gathered is then sent to the Governor to make the ultimate decision.

Lastly, individuals can petition the Governor for outright clemency.  This process has numerous qualifiers, disqualifiers and can take up to 4 months to get a hearing on the petition.  Given the current situation, such petitions are likely the last course of action and are best drafted with the expediency of decision at the forefront.

Federal Pretrial Release

Individuals in Federal facilities will fall into two categories as far as possible avenues for release: 1. Those currently detained prior to trial or sentencing and 2. Those serving an executed sentence.  For those detained prior to trial they would need to file a Motion for a Bail Hearing or to Reopen Detention Hearing if they previously had such a hearing.  Under both motions, the focus is on 18 USC 3142(i) of the Bail Reform Act that provides for the “temporary release” of someone in pretrial custody “to the extent that the judicial officer determines [] to be necessary for [] another compelling reason.”  Under 18 USC 3145(f)(2) a detention hearing may be reopened at any time before trial if the judicial officer finds information exists that was not known at the time of the original hearing, which is now has a material bearing on the issue assuring someone will appear for all court hearings, while considering the statutory factors of an individual’s “physical and mental condition” and how they are impacted by COVID-19.   These motions are focused on the broad risk of a mass outbreak inside a Federal facility and any specific characteristics of an individual that the judicial officer should be aware of in the context of COVID-19.

Federal Sentence Reduction

For those individuals who have been sentenced, they cannot file a petition or motion for modification directly to the judicial officer as you can in state court.  Rather, pursuant to the First Step Act of 2018 amendments to 18 USC 3582(c)(1), an individual must file a petition to the Bureau of Prisons for a reduction of sentence or compassionate release (the terms are used interchangeably).  Upon receipt of the petition (using their appropriate forms) by the facility Warden, the Bureau of Prisons considers many factors such as whether an individual’s release would pose a danger to the safety of the community or any other person, extraordinary or compelling circumstances that were not know at the time of sentencing, proposed release plans cited in the petition, an individuals medical condition (terminal or otherwise), the age of the individual (with individuals 65 and older have specific avenues for possible release), the recommendations of a committed consisting of facility staff who regularly associate with the individual, and much more.   At that time the facility, through the decision of the Warden or General Counsel, can make a decision to grant or deny the request.  There may be additional measures needing to be taken if there is a denial to ensure all administrative measures have been exhausted.  After the final denial or after 30-days since filing the petition if there is not a decision made by the Bureau of Prisons, you may then petition the sentencing court for a reduction of sentence.

Depending on what someone’s situation is, there are various options available that may have very specific requirements, timelines, or other administrative avenues that have to be followed to prevent unnecessary delay.  This highlights the importance of being sure to talk to an attorney experienced in these areas.

Contact Banks & Brower

If you or somebody you know has recently been convicted of a crime or has questions about the criminal case process, contact the experienced criminal defense attorneys at Banks & Brower, LLC.  We are available at all times by calling us at 317-870-0019 or by emailing info@banksbrower.com.