CA NO.

20-30086

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, DC NO. 3:13-CR-234-SI

Plaintiff-Appellee,

v.

JONATHAN N. MILLAGE,

Defendant-Appellant.

BRIEF OF AMICI CURIAE NINTH CIRCUIT FEDERAL AND

COMMUNITY DEFENDER ORGANIZATIONS IN SUPPORT OF
DEFENDANT-APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF OREGON
HONORABLE MICHAEL H. SIMON
United States District Judge

AMY KARLIN SAMUEL RICHARD RUBIN

Interim Federal Public Defender Federal Public Defender
BRIANNA MIRCHEFF MILES POPE
Deputy Federal Public Defender Assistant Federal Public Defender
321 East 2nd Street Federal Defender Services of Idaho
Los Angeles, California 90012-4202 702 West Idaho Street, Suite 100
Telephone: (213)894-2854 Boise, Idaho 83702
Email: [email protected] Telephone: (208)331-5500
Email: [email protected]
 TABLE OF CONTENTS
Page

Statement of the Interest of Amici Curiae. ............................................... v

I. Introduction ....................................................................................... 1

II. Argument ........................................................................................... 4

A. COVID-19 Has Hit The Bureau of Prisons Hard. .....................4

B. The Bureau of Prisons Is Facing Serious Tests to its

Capacity...............................................................................................8

C. The Bureau of Prisons Is Unable to Provide Meaningful

Process for Compassionate Release Requests. .........................11

1. In some facilities, the BOP administrative remedy

process has broken down all together. ..............................12

2. In some cases, inmates are at facilities that have no

BOP administrative remedy program. .............................15

3. In many cases, the BOP’s grounds for denial are not

relevant to whether the district court should grant
relief. ........................................................................................17

4. District courts should have discretion to weigh a

particular inmate’s peril and decide whether the
exhaust-or-wait rule risks intolerable harm. ..................22

D. Inmates At Grave Risk In Custody Are Unlikely To Be

Release By Other Mechanisms. ...................................................26

III. Conclusion........................................................................................ 29

i
 TABLE OF AUTHORITIES
Page(s)
Federal Cases

Aircraft & Diesel Equip. Corp. v. Hirsch,

331 U.S. 752 (1947) .............................................................................. 22

Fraley v. U.S. Bureau of Prisons,

1 F.3d 924 (9th Cir. 1993) .................................................................... 21

Miller v. United States,

2020 WL 1814084 (E.D. Mich. Apr. 9, 2020) ...................................... 20

Ross v. Blake,
136 S. Ct. 1850 (2016) .......................................................................... 14

Sun v. Ashcroft,
370 F.3d 932 (9th Cir. 2004) ................................................................ 15

United States v. Beck,

__ F. Supp. 3d __, 2019 WL 1864906 (M.D.N.C. June 28,
2019) ..................................................................................................... 25

United States v. Brannan,

4:15-cr-89, Dkt. 286 (S.D. Tex. Apr. 2, 2020) ...................................... 11

United States v. Campagna,

2020 WL 1489829 (S.D.N.Y. Mar. 27, 2020) ....................................... 21

United States v. Colvin,

2020 WL 1613943 (D. Conn. Apr. 2, 2020) ......................................... 21

United States v. Decator,

2020 WL 1676219 (D. Md. Apr. 6, 2020) ............................................. 25

United States v. Ebbers,

__ F. Supp. 3d __, 2020 WL 91399 (S.D.N.Y. Jan. 8, 2020) ............... 25

United States v. Gentry,

Case No. 2:19-cr-78, Dkt. 98 (D.N.J Apr. 5, 2020).............................. 17

United States v. Ghorbani,

Case No. 1:18-cr-255, Dkt. 129 (D.D.C. Apr. 3, 2020) ........................ 17
ii
 TABLE OF AUTHORITIES
Page(s)
Federal Cases (cont.)

United States v. Gonzalez,

2:18-cr-232-TOR, 2020 WL 156155 (E.D. Wash. Mar. 31,
2020) ..................................................................................................... 16

United States v. Gonzalez,

2020 WL 1536155 (E.D. Wash. Mar. 31, 2020)................................... 21

United States v. Krokos,

Doc. 1009 (C.D. Cal. Apr. 6, 2020)....................................................... 28

United States v. Muniz,

2020 WL 1540325 (S.D. Tex. Mar. 30, 2020) ...................................... 21

United States v. Pearson,

Case No. 3:18-cr-250-HTW-FKB, Dkt. No. 61 (S.D. Miss.
Apr. 1, 2020) ......................................................................................... 13

United States v. Petrossi,

1:17-cr-192-CCC, Dkt. 124-4 (Apr. 9, 2020) ........................................ 18

United States v. Powell,

No. 1:94-cr-316-ESH, Dkt. No. 98 (D.D.C. Mar. 28, 2020) ................. 21

United States v. Resnick,

2020 WL 1651508 (S.D.N.Y. Apr. 2, 2020) ......................................... 21

United States v. Sawicz,

08-cr-287, 2020 WL 1815851 (E.D.N.Y. Apr. 10, 2020)...................... 22

United States v. Tran,

0:08-cr-197-DOC, Dkt. 402 (C.D. Cal. Apr. 10, 2020)................... 11, 13

United States v. Zukerman,

2020 WL 1659880 (S.D.N.Y. Apr. 3, 2020) ......................................... 23

Washington v. Barr,
925 F.3d 109 (2d Cir. 2019) ................................................................. 22

iii
 TABLE OF AUTHORITIES
Page(s)
Federal Statutes

18 U.S.C. § 3582(c)(1)(A) .................................................................. passim

28 U.S.C. § 994(t) ...................................................................................... 25

First Step Act, Pub. L. No. 226-391, § 603, 132 Stat. 5194,
5238-40 (2018) ...................................................................... 2, 10, 15, 25

U.S.S.G. § 1B1.13 ............................................................................... 19, 20

Regulations

BOP Program Statement 5050.50 ............................................... 12, 18, 19

Other Authorities

164 Cong. Rec. H10358 (Dec. 20, 2018) ................................................... 11

164 Cong. Rec S7774 (Dec. 18, 2018) ....................................................... 11

Sen. Rep. 98-225 ......................................................................................... 1

Bureau of Prisons Annual Report to Congress (Feb. 13, 2020) .............. 24

Inspector General, The Federal Bureau of Prisons’

Compassionate Release Program (Apr. 2013) ....................................... 2

Oversight of the Federal Bureau of Prisons and

Implementation of the First Step Act of 2018: Hearing
before the Subcomm. on Crime, Terrorism, and Homeland
Security of the H. Comm. on the Judiciary, 115th ............................... 8

iv
 Statement of the Interest of Amici Curiae, Corporate Disclosure
Statement, and Statement of Authority to File.

The Ninth Circuit Federal and Community Defender

Organizations listed below advocate on behalf of the criminally accused

pursuant to 18 U.S.C. § 3006A, with the core mission of protecting the

constitutional rights of their clients and safeguarding the integrity of

the federal criminal justice system. Specific to this case, Defenders have

represented thousands of individuals who are now housed in federal

prisons around the country, including facilities that are experiencing

exponential increases in infections from COVID-19. They have

particular knowledge of the difficulties incarcerated individuals face in

completing administrative requests for compassionate relief, and a

strong interest in the accurate development of the law in this area.

No party or party’s counsel or any person other than employees of

amici curiae authored this brief in whole or in part or contributed

money that was intended to fund preparing or submitting the brief.

Counsel for both parties have consented to the filing of this brief.

/s/ Brianna Mircheff /s/ Miles Pope

BRIANNA MIRCHEFF MILES POPE
Attorneys for Amici Curiae

v
Michael Filipovic Kathy Nester
Federal Public Defender for the Executive Director of Federal
Western District of Washington Defenders of San Diego, Inc.

Anthony Gallagher Samuel Richard Rubin

Federal Public Defender for the Executive Director of Federal
District of Montana Defender Services of Idaho, Inc.

Andrea George Jon Sands

Community Defender for the Federal Public Defender for the
Eastern District of Washington District of Arizona

John T. Gorman Rene Valladares

Federal Public Defender for the Federal Public Defender for the
District of Guam District of Nevada

Steven Kalar Heather Williams

Federal Public Defender for the Federal Public Defender for the
Northern District of California Eastern District of California

Amy Karlin Peter C. Wolff, Jr.

Interim Federal Public Defender Federal Public Defender for the
for the Central District of District of Hawaii
California

Jamie McGrady
Federal Public Defender for the
District of Alaska

vi
 I. INTRODUCTION

The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A),

serves as an important safety valve in the federal sentencing system.

Once a federal sentence becomes final, a number of rules serve to keep

the finality of that sentence intact. In some cases, however,

circumstances arise that can significantly alter the calculus conducted

at the original sentencing or cast doubt on the need for further

incarceration. Congress wanted the district court to have discretion to

take another look in appropriate cases, and it did so through enacting

the compassionate release statute. From the get-go, Congress was clear

that it wanted to “keep[] the sentencing power in the judiciary where it

belongs,” Sen. Rep. 98-225, at *60, 1983 WL 25404 (Aug. 4, 1983), and

so the statute vested decision-making power in the district court.

Congress initially tasked the Bureau of Prisons with bringing

“extraordinary and compelling” cases to the attention of the district

court for adjudication. But the BOP proved unfit for the task. Between

2013 and 2017, the Bureau of Prisons approved just six percent of the

5,400 applications it received, and 266 inmates who requested

compassionate release died in custody before the sentencing judge was

1
given an opportunity to weigh in. 1 In a key report on the BOP’s

administration of compassionate release—a report that helped spur the

First Step Act’s reforms to compassionate release—the Department of

Justice’s Office of Inspector General explained that the BOP’s

management of compassionate release prevented many inmates “who

may be eligible candidates for release” from even being considered and

left “terminally ill inmates dying before their requests were decided.”

U.S. Dep’t of Justice Office of the Inspector General, The Federal

Bureau of Prisons’ Compassionate Release Program at i (Apr. 2013).2

To restore compassionate release to its intended role—a

mechanism for empowering judges to consider sentencing reductions in

appropriate cases—Congress enacted section 603 of the First Step Act.

Pub. L. No. 226-391, § 603, 132 Stat. 5194, 5238-40 (2018). The First

Step Act loosened the BOP’s grip on the pipeline of cases presented to

the district court by permitting inmates to petition courts directly. It

1 See Christie Thompson, Old, Sick and Dying in Shackles, The

Marshall Project (Mar. 7, 2018), available
https://www.themarshallproject.org/2018/03/07/old-sick-and-dying-in-
shackles.
2
Available https://oig.justice.gov/reports/2013/e1306.pdf (emphasis
added).

2
still gave the BOP a role to play—the BOP would get 30 days in which

to investigate a compassionate release request and make an

administrative decision or refer the case to the court. See 18 U.S.C.

§ 3582(c)(1)(A) (permitting defendant to bring a motion after “fully

exhaust[ing] all administrative rights to appeal a failure of the Bureau

of Prisons to bring a motion on the defendant’s behalf or the lapse of 30

days from the receipt of such a request by the warden of the defendant’s

facility, whoever is earlier[.]”). But the message from Congress to the

BOP was clear: triage compassionate release claims quickly, or be cut

out of the process entirely.

In ordinary times, in most cases, Congress would have seen 30

days—14 days in the case of terminally ill inmates—as an adequate

compromise between the facility’s need to conduct its investigation and

an inmate’s needs for a prompt determination. Thirty days would give

the BOP time to gather medical records and background information

about the inmate. And whether it ultimately made a motion or not, the

agency’s factual record might inform the sentencing court’s

determination of whether extraordinary and compelling reasons exist.

These, however, are not ordinary times. Under current conditions,

staff shortages and conflicting marching orders have left facilities

3
unable to conduct much meaningful process at all during the 30-day

period. Meanwhile, a 30-day wait is intolerable for a disease that can go

from asymptomatic to fatal in less than a week. Cassidy McDonald,

Federal Prisons Confirm First Staff Death Linked to Coronavirus, CBS

News (Apr. 18, 2020) (describing USP Atlanta employee who died of

COVID-19, who was tested by the BOP, found asymptomatic, and

cleared for entry to the facility less than a week earlier). 3

Appellant’s Brief persuasively argues that the exhaust-or-wait

rule should be subject to equitable exceptions, including futility,

inadequacy, and irreparable harm. Amici write to describe why district

courts so desperately need that authority during the current crisis.

II. ARGUMENT

A. COVID-19 Has Hit The Bureau of Prisons Hard.

On March 21, 2020—30 days ago—the BOP announced its first

reported inmate case of COVID-19. As of today, the BOP has 863

positive cases of COVID-19: 540 among inmates, and 323 among staff.

Twenty-three inmates and one BOP staff member have died of the

3
Available https://www.cbsnews.com/news/coronavirus-federal-
prisons-confirm-first-staff-death-linked-to-covid-19-robin-grubbs-usp-
atlanta/

4
illness. The increase in BOP cases over the past weeks represents a

terrifying epidemic curve.

And even these numbers are almost certainly an undercount, because

there is almost no testing being conducted at the most seriously affected

sites. See Eric Heisig, Judge Grills Federal Prisons Lawyer On Lack of

Coronavirus Tests, Cleveland.com (Apr. 18, 2020) (stating that FCI

Elkton, one of the hardest hit facilities, has tested 59 people out of its

5
population of 2000 inmates, and receives only 25 tests per week); 4 Tom

McParland & Jane Wester, NY Members of Congress Demand

Aggressive and Immediate Covid-19 Testing (Apr. 17, 2020) (reporting

that only 19 inmates at MDC and MCC in New York City have been

tested, out of population of 2,400, with 10 of those 19 testing positive). 5

It’s not that the BOP hasn’t taken measures to attempt to control

the spread. All inmates have been generally locked down since March

31, 2020, and the BOP has mandated certain cleaning measures and

issuance of protective gear. See Bureau of Prisons, BOP Implementing

Modified Operations. 6 But those measures simply haven’t flattened the

curve for those inside the institutions’ walls.

Some of the hardest hit facilities have been low and minimum

security facilities. A number of those facilities have dormitory-style

4 Available https://www.cleveland.com/court-justice/2020/04/judge-
grills-federal-prisons-lawyer-on-lack-of-coronavirus-tests-at-ohio-
facility-in-wake-of-trumps-claim-that-anybody-can-get-tested.html (last
visited April 21, 2020).
5 Available
https://www.law.com/newyorklawjournal/2020/04/17/ny-members-of-
congress-demand-aggressive-and-immediate-covid-19-prevention-steps-
at-citys-federal-jails/ (last visited April 21, 2020).
6 Available https://www.bop.gov/coronavirus/covid19_status.jsp.

6
bunks, with 160 people in a single room. An inmate recently released

from Oakdale describes it like this:

[T]he camp, there’s two large dorms filled with bunk beds stacked
end to end, three feet apart widthwise. So when you’re sleeping on
your bunk bed, you’re within three feet of 12 people snoring and
breathing hard. So there’s a lot of common breaths going on in
there.

Janet Reitman, “Something Is Going to Explode”: When Coronavirus

Strikes a Prison N.Y. Times Magazine (Apr. 19, 2020). 7

This is what that looks like in FCI Fort Dix:

7 Available
https://www.nytimes.com/2020/04/18/magazine/oakdale-federal-prison-
coronavirus.html. The article details just how many of the BOP’s stated
requirements are being honored in the breach.

7
See Joe Atmonavage, “People are Scared.” Inside a federal prison in N.J.

amid the coronavirus outbreak, N.J. Advance Media (Apr. 17, 2020). 8

Despite the BOP’s efforts, coronavirus continues to spread,

putting prisoners, staff, and the communities that surround BOP

facilities in greater and greater danger.

B. The Bureau of Prisons Is Facing Serious Tests to its

Capacity.

Though the BOP maintains, publicly, that everything is under

control, the pandemic is clearly straining its resources. BOP facilities

have been overcrowded and understaffed for years. 9 The current crisis,

which has left a significant number of employees sick and a great deal

more quarantined, has stretched the agency even thinner. Co-located

facilities that used to share staff for economies of scale can no longer do

8 Available https://www.nj.com/coronavirus/2020/04/people-are-
scared-inside-a-federal-prison-in-nj-amid-the-coronavirus-outbreak-
video.html.
9 See Oversight of the Federal Bureau of Prisons and
Implementation of the First Step Act of 2018: Hearing before the
Subcomm. on Crime, Terrorism, and Homeland Security of the H.
Comm. on the Judiciary, 115th Cong. 2-4 (2019) (statement of Kathleen
Hawk Sawyer, Director, Fed. Bureau of Prisons),
https://docs.house.gov/meetings/JU/JU08/20191017/110089/HHRG-116-
JU08-Wstate-SawyerK-20191017.pdf.

8
so. Counselors, teachers, and nurses are guarding prisoners. Joseph

Neff and Keri Blakinger, Federal Prison Agency “Put Staff in Harm’s

Way” of Coronavirus, The Marshall Project (Apr. 3, 2020).10 Nurses are

working around the clock, and guards “have worked shifts as long as 40

hours.” Id. Correctional officers on shift at hospitals wait to be relieved,

but no relief comes. 11 BOP officials have acknowledged these issues. In

a sworn declaration, the Associate Warden of Oakdale, the facility with

the highest death count, admitted that “[t]he number of sick and

quarantined staff has caused a number of non-custody staff to have to

work in traditional custody staff roles.” See Declaration of Associate

Warden Segovia, Livas v. Myers, 2:20-cv-422-TAD, Dkt. 8-1, at 3-4 (Apr.

10, 2020).12

10
Available
https://www.themarshallproject.org/2020/04/03/federal-prisons-agency-
put-staff-in-harm-s-way-of-coronavirus.
11
See “Something Is Going to Explode”, N.Y. Times Magazine (“I
had an officer that got to work at 6 that morning and volunteered to
work at the hospital to relieve a staff member so they could go home.
Ended at midnight and never got relieved, drove back to the institution
because he had another shift to pull there and fell asleep three times on
the highway.”)
12
Available
https://www.fd.org/sites/default/files/covid19/bop_jail_policies_and_infor
mation/8-1_warden_affidavit.pdf.

9
 These staff shortages severely curtail the facilities’ ability to

respond—meaningfully, or at all—to administrative requests. Again,

FCI Oakdale’s Associate Warden’s declaration lays this out starkly.

According to the Associate Warden, he was given a list of 58 people to

screen for release on home confinement, a form of administrative relief

managed wholly by the BOP. Id. at 5. In ordinary times, this review

would be conducted by case-management specialists. Id. But at

Oakdale, the leader of the case-management team is out under

quarantine, and other case-management staff are performing custody

functions. Id. at 6. Consequently, the Associate Warden has had to

assign “temporary staff” with some experience in case management to

the task of reviewing home-confinement applications. With those

resources, the facility had managed to review “the vast majority” of

home-confinement applications. Id.

As for compassionate release, the same declaration makes only

brief mention. It says that FCI Oakdale has received “a number” of

requests since the crisis began and they are “attempting” to process the

requests quickly. Id. at 4. Tellingly, the Associate Warden points to the

changes brought about by the First Step Act that permit an inmate to

10
bypass the BOP and go to the district court, and notes that five inmates

have been released because they did so.

At least two of those inmates got relief because a court was willing

to say that the conditions in Oakdale were so horrific that the 30-day

exhaust-or-wait period should be excused. United States v. Tran, 0:08-

cr-197-DOC, Dkt. 402 (C.D. Cal. Apr. 10, 2020); United States v.

Brannan, 4:15-cr-89, Dkt. 286 (S.D. Tex. Apr. 2, 2020).

C. The Bureau of Prisons Is Unable to Provide Meaningful

Process for Compassionate Release Requests.

Congress modified the compassionate release statute with an eye

toward both “increasing the use” of compassionate release and

“expedi[ting] compassionate release applications.” 164 Cong. Rec.

H10358 (Dec. 20, 2018); 164 Cong. Rec S7774 (Dec. 18, 2018). These

purposes were reflected in Congress’s choice of an exhaust-or-wait rule:

Congress declined to require the court to wait on the BOP in every case.

Instead it allowed the BOP, as custodian of relevant medical and other

factual records, to conduct what review it could in order to assist and

expedite the district court’s consideration of the motion—but only when

it could do so in a timely manner.

11
 But Congress’s premise has broken down in the current crisis. The

BOP’s decision to move for compassionate release is the culmination of

a process that requires the input of attending physicians, counselors,

case managers, social workers, wardens, and the Medical Director of the

BOP. See Program Statement 5050.50, § 8. 13 Nobody has time for that

right now. After canvassing all the Federal and Community Public

Defender’s Offices nationwide engaged in compassionate release work,

no one is aware of a single BOP-initiated motion for compassionate

release (that was not already finalized pre-COVID) made during the

current crisis. And the idea that the BOP’s triage might nevertheless

shed light on the process is unrealistic given the BOP’s current lack of

capacity. This failure of capacity manifests in at least four different

ways.

1. In some facilities, the BOP administrative remedy process

has broken down all together.

First, in some facilities, whether because of bureaucratic red tape

or the staffing problems described above, the administrative remedy

process has entirely broken down.

13
Available https://www.bop.gov/policy/progstat/5050_050_EN.pdf

12
 At CI Taft, the Warden’s Office issued a memo, a snippet of which

follows, categorically declining to process any requests for release

whatsoever:

See https://www.fd.org/sites/default/files/2020.04.06-_taft_memo.pdf.

At FCI Oakdale, an inmate wrote a declaration, which a district

court found to be credible, saying that he submitted a request to the

Warden, and his request was returned to him unanswered. See United

States v. Tran, 0:08-cr-197-DOC, Dkt. 402 (C.D. Cal. Apr. 10, 2020)

(finding declaration credible and finding an exception to Section

3582(c)(1)(A)’s exhaust-or-wait rule).

There are similar reports, from Oakdale and elsewhere. See

Motion for Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A),

United States v. Pearson, Case No. 3:18-cr-250-HTW-FKB, Dkt. No. 61,

at 11 (S.D. Miss. Apr. 1, 2020) (attorney proffer that an employee of FCI

13
Oakdale II told him directly that her “superiors advised her not to turn

in any [compassionate release] paperwork until the BOP figures out

how to respond to the ever-developing COVID-19 situation”); see also

Families Against Mandatory Minimums, Letter to Attorney General

Barr (Apr. 21, 2020) (reporting case of an elderly inmate told by his case

manager “not to bring ‘that s---’ to him because he would not do

anything with it”). 14

This Court is not called on to decide whether these anecdotal

reports are credible. Rather, this Court need decide only whether

Congress intended the exhaust-or-wait rule to be absolutely mandatory,

or whether it should be subject to equitable exceptions in cases where

strict adherence would thwart the statute’s purposes. In the context of

other exhaustion-type requirements, courts can evaluate whether such

requirements should be excused because the agency has acted to thwart

the administrative process or because requiring additional exhaustion

would be futile. See Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (statute

14
Available https://famm.org/wp-content/uploads/final-bop-letter-
april-21-2020.pdf. FAMM’s President indicates—and it mirrors reports
Amici have heard—that “[w]hile most staff use less colorful language,
many have discouraged prisoners from applying and often refuse to
accept written requests.”

14
mandating exhaustion subject to exception where “prison

administrators thwart inmates from taking advantage of a grievance

process through machination, misrepresentation, or intimidation”); Sun

v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004) (futility excuses the

failure to administratively exhaust where “the agency’s position on the

question at issue appears already set, and it is very likely what the

result of recourse to administrative remedies would be.”).

There is every reason to think that Congress would have wanted

sentencing judges to engage in similar common-sense reasoning.

Congress amended the First Step Act to ensure that bureaucracy would

not come between the inmate and the sentencing judge. Surely it would

have wanted district courts to have the authority to make common-

sense judgments about whether, for example, waiting for additional

BOP process would be fruitless when the facility has issued an official

memo saying that it will not accept requests.

2. In some cases, inmates are at facilities that have no BOP

administrative remedy program.

Some inmates are unable to begin the administrative process for

an entirely different reason: At any given moment, a significant number

of inmates in the federal system are stuck in limbo, serving their

15
sentence but not designated to any BOP facility. In some districts,

sentenced individuals remain in local detention centers, awaiting

designation or transportation to a BOP prison. Even inmates who have

served a significant portion of their sentences may find themselves with

a stopover in a county jail facility during transit from one facility to

another. The problem of inmates-in-limbo is particularly acute right

now: the BOP has enacted policies designed to limit the movement of

inmates around the country, meaning that inmates are more or less

stuck where they are. 15

For inmates stuck in this legal no-man’s-land, it is supremely

important that sentencing courts be able to weigh whether it is useless

to wait for a process that doesn’t exist. See United States v. Gonzalez,

2:18-cr-232-TOR, 2020 WL 156155, at *1 (E.D. Wash. Mar. 31, 2020)

(finding a futility exception to the 30-day waiting period where inmate

had not been designated to a facility yet and so could not possibly start

the compassionate-release process). Even the government has

acknowledged that this is the correct result. See Letter from the United

15
BOP Implementing Modified Operations, available
https://www.bop.gov/coronavirus/covid19_status.jsp.

16
States, United States v. Gentry, Case No. 2:19-cr-78, Dkt. 98 (D.N.J Apr.

5, 2020) (stating government’s view that an inmate who is not in BOP

custody can fairly say he has “fully exhausted” through “conceded

inability”). See also Joint Submission Regarding Defendant Ghorbani’s

Motion for Reduction of Sentence Pursuant to Compassionate Release,

United States v. Ghorbani, Case No. 1:18-cr-255, Dkt. 129 (D.D.C. Apr.

3, 2020) (acknowledging that § 3582(c)’s exhaust-or-wait rule can be

waived when “exceptional reasons of particular urgency” exist, such as

when an inmate has been sentenced but not yet designated to a BOP

facility (quoting Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993)).

Forcing inmates who have no access to an administrative process

to sit on their hands for 30 days makes no sense, and serves none of the

goals that Congress intended when it amended the statute.

3. In many cases, the BOP’s grounds for denial are not

relevant to whether the district court should grant relief.

Where inmates are actually able to submit requests, many are

told that COVID-19 vulnerability is not an approved basis for the

agency to submit a compassionate release motion. Consider the

following warden denial:

17
 The current pandemic of the COVID-19 virus . . . is not a
qualifying factor that would warrant a motion to be filed with the
sentencing court.

Warden Denial, United States v. Petrossi, 1:17-cr-192-CCC, Dkt. 124-4

at Exh. D (Apr. 9, 2020). This answer isn’t entirely off the mark. BOP

Program Statement 5050.50 sets standards for what the agency

considers a sufficient basis to make a motion in the district court— and

its criteria has little play in the joints.

For example, elderly inmates are at particularly high risk of

serious illness or death from COVID-19. But, under the Program

Statement, the BOP must deny the request of an elderly inmate unless

he is (a) 70 years old, having served 30 years; (b) 65 years old, having

served the greater of 10 years or 75% of the sentence; or (c) 65 years old,

having served 50% of the sentence and having met certain medical

benchmarks. See Program Statement 5050.50, § 4. An inmate can be 80

years old, with any number of serious illnesses, and at an extremely

high risk of dying from COVID-19, but that inmate will never be

approved by the BOP for the filing of a compassionate release motion if

he doesn’t hit those marks.

The BOP’s Program Statement has similarly stringent criteria for

compassionate-release based on a debilitating medical condition. By

18
policy, a medically-based request for compassionate release “should [be]

consider[ed]” only if the illness is one that confines the individual to a

bed or wheelchair more than 50% of waking hours and limits the

individual’s ability to provide self-care. Program Statement 5050.50, §

3(b). A 60-year-old person with diabetes, hypertension, kidney disease,

heart failure, or any of the other conditions that the Centers for Disease

Control and Prevention say make one vulnerable to COVID-19 won’t be

found eligible unless those conditions also (happens to) confine him to a

wheelchair and limit his ability to perform “self-care” functions like

toileting and feeding.

The time spent waiting for these denials is particularly

unfortunate because the Sentencing Guidelines, which guide the

district court’s decision, see 18 U.S.C. § 3582(c)(1)(A), contain criteria

that are more generous in certain respects. For example, while Program

Statement 5050.50 authorizes compassionate release for inmates 65 or

older who have served “the greater of 10 years or 75% of the term of

imprisonment to which the inmate was sentenced,” Program Statement

5050.50 § 4(c), the elderly-release criteria under the guidelines require

that the defendant has served ten years or 75% of his or her sentence,

whichever is less. See U.S.S.G. § 1B1.13 cmt. n.1(B). The medically-

19
based criterion has a similar mismatch; the BOP Program Statement

forbids consideration unless the inmate has served 50% of the sentence,

but the guideline has no such requirement. U.S.S.G. § 1B1.13 cmt.

n.1(a)(ii).

The mismatch in criteria leads to strange exhaustion requests like

this one submitted recently:

Any time the BOP spends considering a request that cannot be granted

under the agency’s policies, and any time the district court spends

waiting for the agency’s response, is a waste on both fronts.

Though the BOP’s criteria leave it little room to move for a

reduction based on COVID-19 vulnerability, a number of courts have

concluded that releasing inmates who are especially vulnerable to

coronavirus is consistent with the criteria in U.S.S.G. § 1B1.13. 16 Those

Orders that weigh COVID-19 vulnerablity in the

16

compassionate-release calculus include Miller v. United States, 2020

20
courts that have granted relief in the past few weeks deem it irrelevant

that, under the BOP’s policy, COVID-19 is not a basis for reducing a

sentence.

Again, Amici are not asking this Court to make a blanket finding

that the current crisis renders it always, or even generally, futile to let

the BOP’s processes to unfold. Rather, Congress’s intent of expediting

compassionate release is well served by permitting district courts,

confronted with unbending BOP policy that fails to meet the current

crisis, to decide whether requiring further exhaustion frustrate

Congress’s goal. Courts frequently consider whether agency exhaustion

would be futile because denial would be required by agency policy,

Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993), and

sentencing courts should be permitted to do so here.

WL 1814084, at *1,4 (E.D. Mich. Apr. 9, 2020); United States v. Colvin,

2020 WL 1613943, at *3-4 (D. Conn. Apr. 2, 2020); United States v.
Resnick, 2020 WL 1651508, at *7 (S.D.N.Y. Apr. 2, 2020); United States
v. Gonzalez, 2020 WL 1536155, at *2-3 (E.D. Wash. Mar. 31, 2020);
United States v. Muniz, 2020 WL 1540325, at *2 (S.D. Tex. Mar. 30,
2020); United States v. Powell, No. 1:94-cr-316-ESH, Dkt. No. 98
(D.D.C. Mar. 28, 2020); United States v. Campagna, 2020 WL 1489829,
at *1, 2 (S.D.N.Y. Mar. 27, 2020).

21
 4. District courts should have discretion to weigh a
particular inmate’s peril and decide whether the exhaust-
or-wait rule risks intolerable harm.

Finally, sometimes the district court is confronted with an inmate

in such peril that it would be cruel to wait 30 days for a bureaucracy to

act. Federal courts have long recognized that exhaustion-type

requirements should sometimes be excused when delay might cause the

defendant undue prejudice or irreparable harm. Washington v. Barr,

925 F.3d 109 (2d Cir. 2019). “[M]ere preference for a speedy resolution

is not enough.” Id. (citation omitted). But exhaustion can be excused in

cases involving “inadequacy of the prescribed procedure” and a showing

of “impending harm.” Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S.

752, 773-74 (1947).

In recent days, courts around the country have been presented

with compelling showings of prejudice by delay, and they have not

hesitated to act. In United States v. Sawicz, 08-cr-287, 2020 WL

1815851 (E.D.N.Y. Apr. 10, 2020), for example, the district court waived

the 30-day wait-or-exhaust period in light of the COVID-19 outbreak in

FCI Danbury. Id. at *2. On April 10th, there were 57 positive cases at

FCI Danbury. By April 20th, there were 67 total positive cases, and one

death. See Appendix A, Decl. ¶¶ 2, 3. If Mr. Sawicz had been required to

22
wait 30 days from his April 5th request to the warden, he would still

have several weeks left on the clock.

Morris Zukerman is another example. Mr. Zukerman is “75 years

old and suffers from diabetes, hypertension, and obesity.” United States

v. Zukerman, 2020 WL 1659880, at *1 (S.D.N.Y. Apr. 3, 2020). On

March 27, 2020, he submitted a request for compassionate release to

the warden of FCI Otisville, the facility where he was housed. Id. at *2.

Finding that Mr. Zukerman’s continued detention at Otisville would

pose “a great . . . risk of severe illness or death”—and finding that

exhaustion of remedies would be futile—the district court granted him

compassionate release on April 3, 2020. Id. at *6. On the day the Court

did so, FCI Otisville had 2 positive cases. On April 20th, there were 24

positive cases—an increase of 1,200%. 17 See Appendix A, Decl. ¶ 2. If

the exhaust-or-wait requirement had not been excused, he would still

have one more week to go before his claim could even be heard.

It bears repeating that the current pandemic does not place every

inmate in equal danger. A sentencing court is in a good position to

consider all of the relevant circumstances: the inmate’s medical

17
See bop.gov/coronavirus.

23
condition, the most up-to-date information about conditions at a

particular facility, and the CDC’s information about the correlation

between a particular health condition and death or serious injury from

coronavirus. And it can weigh that peril against the inadequacies in the

current process—the likelihood, given the current staffing crisis, that

the BOP’s review will produce no result within 30 days, let alone a

result faster than 30 days, 18 or that it will result in a denial on grounds

that are irrelevant to the district court’s decision.

More to the point, all indications are that Congress would have

wanted the sentencing court to have that authority. Section 603 of the

First Step Act created an unusual precondition: either exhaust or wait

30 days. Congress thought it appropriate to let the BOP triage the

request and weigh in, if it could do so quickly. At the same time,

Congress did not view the BOP’s triage as a high enough priority to

make exhaustion a requirement in every case. And in the end, the

18
In the BOP’s most recent (pre-pandemic) annual report to
Congress, it reported that the average time between receipt by the
Warden and final decision was 39 days in cases of terminal illness, and
58 days in cases premised on a debilitating medical condition. See
Appendix C, Bureau of Prisons Annual Report to Congress (Feb. 13,
2020). If those were the median wait in good times, it is hard to believe
that those times will be shorter under the circumstances described
above.
24
district court applies its independent judgment to decide whether to

reduce a sentence, with no deference to any agency decision. See United

States v. Beck, __ F. Supp. 3d __, 2019 WL 1864906, at *13 (M.D.N.C.

June 28, 2019) (“[T]he terms of the First Step Act give courts

independent authority to grant motions for compassionate release and

say[] nothing about deference to BOP, thus establishing that Congress

wants courts to take a de novo look at compassionate release motions”);

see also United States v. Decator, 2020 WL 1676219, at *2 (D. Md. Apr.

6, 2020) (same); United States v. Ebbers, __ F. Supp. 3d __, 2020 WL

91399, at * n.6 (S.D.N.Y. Jan. 8, 2020) (“[N]o statute directs the Court

to consult the BOP’s rules or guidelines . . . and no statute delegates

authority to the BOP to define the statutory requirements for

compassionate release”). 19 Congress reformed Section 3582(c)(1)(A)

because it wanted compassionate release to be a more meaningful

19 Indeed, even “de novo review” is a misnomer. When a district

court rules on a compassionate release motion, it is not reviewing the
BOP’s decision. Instead, it is simply deciding, in the first instance,
whether or not a defendant is entitled to compassionate release under
the law. Both the statutory structure—which gives the BOP no role in
developing criteria for granting compassionate release—and the fact
that the district court is empowered to rule on a compassionate release
motion even if the BOP takes no action make this clear. Cf. 28 U.S.C. §
994(t).

25
vehicle for judicial review of sentences, and it was willing to greatly

limit the BOP’s role in the process to accomplish that goal. All

indicators are that Congress would not have held the exhaust-or-wait

provision sacrosanct above every other consideration.

D. Inmates At Grave Risk In Custody Are Unlikely To Be

Release By Other Mechanisms.

Media reports might suggest—and indeed, the government in

some cases has intimated—that quick action by the courts is not

necessary because the Attorney General is screening individuals with

COVID-19 risk factors for placement into home confinement. Amici

support every effort to remove vulnerable people from BOP custody and

advocate expanding such efforts. At the same time, the Court should be

clear that home-confinement screening is not an adequate solution to

the problem.

On April 3, 2020, Attorney General Barr directed the BOP “to

immediately review all inmates who have COVID-19 risk factors . . .

starting with the inmates incarcerated at . . . facilities where . . .

COVID-19 is materially affecting operations.” Memorandum from the

Attorney General to Director of the Bureau of Prisons, Increasing Use of

Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3,

26
2020). 20 When the BOP issued guidance to carry out the AG’s

instruction, however, the broad mandate was translated into criteria

that had nothing to do with vulnerability to illness. Appendix B.

Instead, the guidance weeded out anyone who wasn’t a United States

citizen, anyone who had any prior violent offense, no matter how

remote, and anyone with any incident report in the past twelve months,

among other requirements. Id.

These criteria significantly limit the usefulness of home

confinement as a tool for addressing the current crisis. The Associate

Warden of FCI Oakdale—one of the facilities that was supposed to be

prioritized—said that the BOP’s Central Office had given the facility a

list of just 58 inmates (out of 1853 inmates) who met the baseline

criteria of release. Declaration of Juan Segovia, Livas v. Myers, 2:20-cv-

422-TAD, Dkt. 8-1 (Apr. 10, 2020). 21 After further institutional review,

only six were approved for release on home confinement as of April 10,

2020. When required by court order to provide an update a week later,

20
Available https://www.justice.gov/file/1266661/download
21
Available
https://www.fd.org/sites/default/files/covid19/bop_jail_policies_and_infor
mation/8-1_warden_affidavit.pdf

27
the Associate Warden said that the figure still stood at six. See

Declaration of Juan Segovia, Livas v. Myers, 2:20-cv-422-TAD, Dkt. 14-

1, at 2 (Apr. 16, 2020). 22

The same pattern repeated itself at FCI Elkton, a low security

facility that is among the hardest hit by coronavirus, with six inmate

deaths to date. Again, in a lawsuit, BOP staff revealed that, in a facility

of 2,500 inmates, only six have been approved for home confinement.

See Declaration of Kristy Cole, Wilson v. Williams, 4:20-cv-794-JG, Doc.

10-2, at 7 (Apr. 17, 2020).

The BOP’s criteria leave many inmates out in the cold—even

inmates who are both good candidates for compassionate release and

whose release would not present any danger to the community. A

detainer has nothing to do with vulnerability to COVID-19. See Govt.

Surreply, United States v. Krokos, Doc. 1009 (C.D. Cal. Apr. 6, 2020)

(suggesting that the district court should stay consideration of

compassionate release request while the BOP processes ran its course,

while admitting that detainer on a Canadian citizen would preclude

22
Available
https://www.fd.org/sites/default/files/covid19/bop_jail_policies_and_infor
mation/14-1_april_16_declaration_with_rc_memo_attached.pdf

28
home confinement consideration). Similarly, an inmate can receive a

discipline report for cursing at a guard, or smoking out of bounds—

violations that say nothing about suitability for release or vulnerability

to COVID-19. Given the agency’s limitations, the home confinement

program will not, by itself, solve the problem.

III. CONCLUSION

In the context of the current crisis, if the exhaust-or-wait

provision is treated as a mandatory requirement, there is a high risk

that avoidable death and serious illnesses will occur. This is true for

vulnerable inmates who deserve compassionate release and risk

contracting the illness every day they remain in a facility. It is equally

true for the staff who must monitor these most vulnerable populations,

and for everybody who must remain in overcrowded facilities with no

space for meaningful social distancing. There are strong legal grounds,

persuasively described in Mr. Millage’s brief, for the Court to conclude

that the exhaust-or-wait provision should be subject to equitable

exceptions, and the facts on the ground cry out for such flexibility.

29
 Amici urge the Court to conclude that § 3582(c)(1)(A)’s exhaust-or-

wait provision is not a mandatory prescription.

Respectfully submitted,

/s/ Brianna Mircheff /s/ Miles Pope

BRIANNA MIRCHEFF MILES POPE
Attorneys for Amici Curiae

30
 CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. 29(a)(5), I certify that this amicus brief

is proportionally spaced, has a typeface of 14 points or more, and

contains approximately 5,602 words (which includes a manual count of

the words contained in images).

DATED: April 21, 2020 By /s/ Brianna Mircheff

BRIANNA MIRCHEFF