Washington Lawyer - November/December 2020 - 23

FEATURE

A TIME FOR COMPASSIONATE RELEASE

s COVID-19 began to spread among the incarcerated population,
Mr. H, whose ailments include a kidney condition and cardiovascular disease, knew he was vulnerable to contracting the virus.
Crowell & Moring LLP, which handles parole grant hearings referred to
the firm by the Washington Lawyers' Committee for Civil Rights and
Urban Affairs, quickly pivoted its representation to argue for Mr. H's
release. He received parole and now lives in Georgia with his mother.
Susan M. Hoffman, public service partner at Crowell & Moring and
immediate past president of the D.C. Bar, says the stakes are high.
"For many of those incarcerated and serving a term of years, having
to remain in these prisons could, in effect, be a death sentence."
Anyone familiar with jails or prisons can understand the particular
concerns raised by the COVID-19 pandemic as they relate to detainees.
Social distancing is impossible in a jail or prison, which can be
breeding grounds for infection at the best of times.
The legal community quickly mounted efforts arguing for the com--
passionate release of nonviolent offenders and those with an
increased risk of contracting the disease due to their medical condition or age. The upside is that the pandemic has made the issue about
detainee health and safety easier to understand and has given attorneys a chance to present compelling arguments on their clients'
behalf.
Jonathan M. Smith, executive director of the Washington Lawyers'
Committee, has a long history of arguing about conditions of confinement and compassionate release. He says that the organization's latest
push on the issue started back in 2018 with the passage of the First
Step Act.
"We joined a partnership with Families Against Mandatory Minimums
and the National Association of Criminal Defense Lawyers to help
identify lawyers who could take compassionate release cases out
of the federal system," Smith says. During the outbreak, this partnership resulted in the establishment of the Compassionate Release
Clearinghouse, which distributes information and coordinates organizational responses to the issue.
The First Step Act introduced some important changes to how
prisoners can seek release. Prior to the law, applications for release
would go through the prison warden. Smith says that it was virtually
impossible to convince the Bureau of Prisons that a client's sentence
deserved reconsideration. The act created a new process by which
the prisoner seeking compassionate release could go directly to the
sentencing judge.
Initially, D.C. prisoners weren't eligible for the First Step Act's protections since they applied only to those convicted in a federal district
court, while most D.C. convictions take place in D.C. Superior Court.
When the virus broke out, the D.C. Council passed emergency legislation adopting the act's protections, opening the door for COVIDrelated claims in petitions for release.

Akin Gump Strauss Hauer & Feld LLP attorneys Steve Schulman,
Abigail Kohlman, and Amanda Lowe have worked alongside the
Washington Lawyers' Committee for years on a project that represents D.C. prisoners at their parole hearings and lobbies for earlier
hearing and release dates. At the moment, the temporary legislation
making these requests possible is important, but Kohlman hopes that
the changes will become permanent. "D.C. inmates should always
have an avenue open for compassionate release, just as they have
in other states and in the federal prison system," Kohlman says.
For Schulman, the rapid legal response has been "a real testament to
the power of pro bono and the determination of attorneys and their
clients to persevere and adapt through so many changes."
His optimism is shared by Hoffman. "There are going to be many
challenges ahead, but along with the challenges there will be some
changes in how courts handle cases and how we handle cases. In the
long run this will result in greater efficiency and will serve more of the
low-income community through our innovations . . . We'll rise to the
challenges."

NOVEMBER/DECEMBER 2020

WASHINGTON LAWYER 23

Washington Lawyer - November/December 2020

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