Early Release Petitions for State Inmates Under the COVID-19 Crisis

The COVID-19 pandemic has created a clear and present danger for those incarcerated. The reality is that in prison or jail, social distancing is impossible, hygiene is often substandard, and good medical is non-existent. With those things in mind, what can criminal lawyers do to help their clients, who are incarcerated in the state system, obtain an early release? First, it must be recognized that each individual state has their own mechanism to petition for an inmate’s early release. In my home state – Ohio, the proper procedure is to file a motion for judicial release. As a starting point, the inmate must be legally eligible to file under the statute. There are many crimes, such a aggravated murder, murder, rape, and other designated offenses, which are generally not eligible for early release – with no exceptions. Once the determination is made that the individual client is eligible under the law, then the lawyer can begin preparation for the early release petition. I typically construct the petition with three distinct components. First, the nature and circumstances of the offense must be addressed in the light most favorable to the client. One simply cannot ignore this area, because the prosecutor certainly will not ignore it in their response to the petition. Even if the facts of the offense are ugly, search for any small nugget that is favorable to the inmate -they were very young/immature when the offense was committed, the victim did not suffer physical or economic harm, mental health issues, even the unfavorable conditions under which the client was raised. Second, obtain documentation on all the positive things accomplished by the inmate while serving time – certificates earned, programs completed, education credits earned, prison employment, institutional summary reports, and anything else favorable to the client. The goal is to point out that the inmate has used their time in prison wisely and molded themselves in to a more productive individual. Third, I try to present to the court a general plan on how the client plans to transition back to civilian life, To do that, I try and set forth where the inmate will live, potential employment, family and friend support system, and other support groups such as AA/NA meeting attendance plans, church groups, etc. That means obtaining letters from family, friends, employers and churches, on the client’s behalf. The purpose is to argue that with a solid plan in place, the chances of recidivism are minimal. It is almost always a good idea to have the client draft a short letter (in their own words and their own writing), stating what they have learned from the prison term, and outlining the positive changes made. Finally, if the inmate is in the high risk group due to age or pre-existing health issues, or if the inmate is housed in an institution with confirmed COVID-19 cases, that should addressed in the petition. All this documentation should be attached to the petition, so that the judge can easily review it. In doing these things, you will put the client in the best position possible for a favorable decision by the court. Good luck to all!