Testing the Boundaries of Brooker and Andrews in the age of COVID-19

Approximately two years before COVID-19 reached our shores, Congress passed the First Step Act (“FSA”)—a federal law authorizing incarcerated individuals to file compassionate release motions on their own behalf. To find an inmate eligible for compassionate release, the court must find the inmate to have demonstrated “an extraordinary and compelling reason” to justify such release.

Since 2020, federal courts in New York have been free to shape the contours of what constitutes an “extraordinary and compelling reason” of what justifies compassionate release. In United States v. Brooker, the Court determined that  pre-FRA policy guidelines “cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling.” United States v. Brooker, 976 F.3d 228, 236 (2d Cir. 2020). In August of this year, the Third Circuit followed suit and adopted the same rule in United States v. Andrews, 20-2768, 2021 U.S. App. LEXIS 26089 (3d Cir. 2021), granting federal courts in New Jersey that same leeway.

Since Brooker and Andrews, we have seen courts in these districts granting compassionate release motions for myriad reasons. A great chunk of compassionate release motions over the last 18 months have been granted based upon a defendant’s high-risk health problems that put them at greater risk of contracting COVID-19. However, defense attorneys have been seeing success with different arguments since the onset of the pandemic. Some courts have granted release to defendants who have no underlying health conditions at all, but have minimal time left on their sentence. As Judge Torres of the Southern District of New York recently explained, when a defendant facing the threat of COVID-19 has a fractional amount of time remaining on their sentence, “[t]he benefits of keeping him in prison for the remainder of his sentence are minimal, and the potential consequences are extraordinarily grave.” United States v. Perez,, 451 F. Supp. 3d 288, 294 (S.D.N.Y. 2020).

Other defendants have successfully argued that the ongoing presence of COVID-19 in prison can contribute to a finding of an extraordinary and compelling reason to warrant compassionate release. In August of this year, we successfully filed for and were granted compassionate release for one of our clients who had already contracted COVID-19 in December of 2020 and was subsequently vaccinated against it. To the court, his vaccination status was inconsequential. Due to a combination of the horrific conditions in which he was forced to live during the pandemic, his health conditions that exacerbated his risk of reinfection, the fractional time he had left on his sentence, his exemplary disciplinary record, and his rehabilitative efforts, the court granted his motion for compassionate release.

While a hefty majority of compassionate release motions are in some way or another COVID-19 related,  the successful momentum has enabled defense attorneys in our districts to test the bounds of Brooker and Andrews. We have begun to make more creative, non-COVID related arguments about what is extraordinary and compelling.  In August of 2021, we successfully argued for compassionate release for a client based upon  non-COVID-19 reasons. Specifically, the court found the combination of our client’s “unanticipated” 14-month stay in state custody (for which he did not receive credit on his federal sentence) and his minor son’s recent leukemia diagnosis were extraordinary and compelling, warranting relief.

The outcome of these two recent cases demonstrate that the outer bounds of Brooker and Andrews may have yet to be defined by courts. Defense attorneys should strive to continue to zealously advance every plausible argument for their clients in the hopes of expanding the definition of “extraordinary and compelling.”