In general, courts can only reduce someone’s prison sentence — or, put differently, grant a compassionate release — for “extraordinary and compelling reasons.” And, as you likely saw with the heartbreaking story about the BOP’s to grant a compassionate release to Eli Torres to be at the funeral for his daughter, Eliahna Cruz Torres, who was one of the children murdered in the May 2022 shooting at Robb Elementary School in Uvalde, Texas, the BOP rarely releases someone early unless a court makes them. During the COVID-19 pandemic, however, the CARES Act changed this.

As the U.S. Sentencing Commission has explained, the CARES Act “[e]xpands the BOP’s authority to place prisoners in home confinement based on criteria set forth in memoranda issued by the U.S. Attorney General during the statute’s ‘covered emergency period,'” which is basically the COVID-19 pandemic. Unfortunately, as the Commission also notes, “[c]ourts do not have jurisdiction over implementation of the CARES Act home confinement,” leaving it entirely up to the BOP.

What are the eligibility requirements for the CARES Act?

In most cases, the BOP will consider people who meet the following criteria for compassionate release:

• have U.S. citizenship,
• are 60 years old or older,
• have COVID-19 risk factors according to the CDC,
• did not commit a violent or sex-related offense or an offense involving terrorism,
• does not have a detainer,
• has a mental healthcare level of I, II or III,
• has a minimum-level PATTERN score,
• is in a low- or minimum-security facility,
• has served at least 50% of their sentence,
• has not faced any incident reports in the past 12 months and
• has a violate release plan addressing
  • housing,
  • employment and
  • medical and treatment needs.

Even if you meet this criteria, however, there is no guarantee that the BOP will release you under the CARES Act. Indeed, as Interrogating Justice has explained, the BOP has dragged its feet when it comes to CARES Act releases for the entire COVID-19 pandemic. And now, as Interrogating Justice has also explained, federal courts are using the availability of the COVID-19 vaccine to pretty much end these releases for good — even though they don’t have the authority to do so.

Do those released under the CARES Act have to go back after the pandemic?

One of the biggest questions around CARES Act releases was whether those released would have to return to prison when the COVID-19 pandemic ends. Originally, the answer was yes. Thankfully, in December of last year, the Biden Administration changed course. Now, the BOP has the ability to allow those released to stay home. Whether the BOP will do that, however, remains to be seen.

The Takeaway:

During the COVID-19 pandemic, the CARES Act expanded the BOP’s authority to release people to home confinement. The goal of this expanded authority was obvious: prevent the spread of COVID-19 in prisons. But, between the BOP’s feet dragging and federal courts’ reliance on vaccination to deny compassionate release, only a few have been lucky enough to benefit from the CARES Act. Thankfully, almost none of those released under the CARES Act have reoffended.