A Golden Ticket? White Collar Defendants Seek Home Confinement Under DOJ's COVID-19 Compassionate Release Guidelines

Amid concerns about the health and safety risks posed by COVID-19, Attorney General Bill Barr recently directed the federal Bureau of Prisons (BOP) to prioritize the use of home confinement for federal inmates. But have these efforts incentivized prominent white collar defendants to game the system? And if so, have these attempts been successful? A slate of high-profile white collar defendants, including Paul Manafort, Michael Cohen, Rick Gates, and Bernie Madoff, have all sought early release into home confinement, with varying degrees of success. The disparate outcomes for these individuals suggests DOJ's new compassionate release guidelines may not be the golden ticket that some defendants are hoping for, especially since the guidelines provide discretion to the BOP and federal judges—both of whom can foreclose the possibility of compassionate release for hopeful inmates.

In a March 26 memorandum, Attorney General Barr directed BOP to begin "prioritizing the use of … home confinement … where appropriate" to lower risks associated with the COVID-19 pandemic. While the memorandum gives BOP discretion to decide which prisoners are eligible for early release, it also directs BOP to consider the "totality of circumstances" for each inmate, including the nature of the individual's offense and his or her age, conduct while incarcerated, potential for recidivism, and whether the inmate has completed at least half of his or her sentence. Many of these last factors tend to favor white collar defendants, and can make it more difficult for others to obtain release.

After a series of high-profile COVID-19-related deaths in federal prisons, Barr issued a more strongly worded memorandum on April 3, drawing on authority granted by the newly enacted CARES Act, which includes a provision waiving the requirement that home confinement be used only during the last six months of an individual's sentence. Barr's April memo instructs BOP to "maximize" the use of home confinement by immediately processing any suitable candidates for transfer and moving individuals from federal prisons after a 14-day pre-release quarantine. The April memo also advised BOP to extend the use of home confinement to "all at-risk inmates—not only those who were previously eligible for transfer," thereby rescinding DOJ's earlier guidance that BOP limit compassionate release to individuals who have completed at least half of their sentences.

Despite Barr's April guidance, BOP still maintains significant discretion over whether to approve an inmate's request for early release into home confinement. Two recent examples raise questions as to whether BOP's discretion has been influenced by political favoritism. On May 13, BOP abruptly released Paul Manafort, former chair of Trump's Presidential campaign, after he requested early release to home confinement because of "coronavirus fears."  Manafort had not served half of his seven-year prison term, but in his petition for release, Manafort's lawyers explained that the 71-year-old's history of heart problems put him at a higher risk of complications from the virus. In contrast, former Trump lawyer Michael Cohen's efforts for the same have been consistently stymied. In March, BOP approved Cohen's request for release and placed him into a 14-day pre-release quarantine. But it subsequently changed course and rescinded its decision, deciding that Cohen had to first serve 50 percent of his sentence or have less than 18 months remaining.

Some, including Cohen's attorney, intimated that the decision regarding Cohen was an act of political favoritism. Like Manafort, Cohen had not served half of his term. But unlike Manafort, Cohen—who is working on a tell-all book about his time as Trump's attorney—has fallen out of favor with Trump. In a letter objecting to Cohen's release, the government argued that Cohen had no specific COVID-19 concerns warranting his release, noting "Cohen has not even attempted to argue that he is uniquely at risk as compared to other inmates. Nor could he: he is 53 years old and in good health." Complicating the story further, in May, BOP seemed on track to approve Cohen's request for home confinement for a second time as he was released to his home on a temporary furlough. On July 9, days after Cohen was spotted eating out at a local restaurant, BOP took Cohen into custody and rejected his request to convert his temporary furlough to home confinement. Cohen's attorney stated that Cohen was detained after he refused the conditions of his home confinement, which included signing documents agreeing not to publish his upcoming book.

Judicial discretion has also yielded disparate outcomes for white collar defendants seeking compassionate release. For instance, on April 16, a federal judge suspended former Trump aide Rick Gates' 45-day intermittent prison sentence "indefinitely" and approved his request to serve the rest of his sentence under home confinement. In a four-page filing, Gates' lawyers described their client's medical history, including the fact that Gates contracted bronchitis in February, and also discussed how Gates' frequent trips in and out of confinement could potentially cause him to expose his wife, who was recently diagnosed with breast cancer, to the virus. Gates' attorneys did not disclose how many days Gates had served out of his 45-day sentence. In contrast, the federal judge who sentenced Bernie Madoff to 150 years in prison for scamming investors in an elaborate Ponzi scheme ceremoniously denied Madoff's request for compassionate release in February. Though Madoff did not raise any COVID-19 related concerns at the time, the 82-year-old's request emphasized his medical history, particularly the fact that he had terminal kidney failure. In his decision denying release, Judge Denny Chin wrote, "It was fully my intent that [Madoff] live out the rest of his life in prison. Nothing has happened in the 11 years since to change my thinking."

These recent examples showcase some of the various challenges white collar defendants can face when trying to secure release from federal prison via a request for compassionate release. Individuals may—or may not—be ineligible if they have not served more than half of their sentences. Or they may face resistance from a federal judge or BOP, both of whom have discretion to decide not to approve the request. Successful petitions for home confinement will thus likely depend on well-informed and persuasive attorneys who can anticipate these pitfalls and work toward a favorable outcome, although they will need to make sure that clients understand the difficulties and maintain realistic expectations.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.