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If you practice criminal defense on any level, you are aware of the profound threat COVID-19 poses to local jails, and both state and federal prisons. In many instances, it is difficult, if not impossible, to practice social distancing in facilities that were already overcrowded before the pandemic struck. The risk is particularly profound for many elderly inmates or inmates with medical conditions that increase the likelihood they will die from the virus.

For federal practitioners, the pandemic has lead to a dramatic increase in the filing of compassionate release motions pursuant to 18 U.S.C. § 3582(c)(1)(A). While the First Step Act expanded the compassionate release statute, an inmate seeking such release still faces a significant bureaucratic hurdle:  he or she must first go to the warden of their facility before seeking relief from the court. The inmate must then exhaust his or her administrative rights to an appeal or wait 30 days after the warden received his or her request, whichever occurs first.

The onset of COVID-19 makes this hurdle more significant. Since the virus spreads quickly through jails and prisons, inmates do not wish to wait thirty days before they can file motions. This has lead defense counsel to seek avenues around the exhaustion requirement. In United States v. Alam, the Sixth Circuit affirmed that there are no such avenues.

Mr. Alam is a 64-year-old man suffering from several medical conditions that, when combined with his age, places him at high risk for morbidity from COVID-19. Having served almost 50% of his 101-month sentence, Mr. Alam sent a letter to the warden of his facility asking him to file a motion for compassionate release. However, he also filed his own motion with the district court ten days later. After the Government objected, the district court denied his motion for failing to satisfy the exhaustion requirement.

On appeal, the Court considered whether Mr. Alam's failure to satisfy the exhaustion requirement deprived the lower court of subject matter jurisdiction to consider his motion. It concluded it did not. Instead, it held the exhaustion requirement was a claim-processing rule courts must enforce when "properly invoked." Since the Government raised a timely objection to Mr. Alam's motion, the district court correctly dismissed the same.

In affirming the lower court's decision, the Court also rejected a litany of arguments raised by Mr. Alam as to why courts could carve exceptions to the exhaustion requirement. Notably, it rejected his argument that it should find an equitable exemption to the exhaustion requirement by noting that since "time is of the essence" to prisoners seeking compassionate release, creating an equitable exemption would allow other inmates to "jump the line," thus making the process "less fair...."

Having held Mr. Alam's motion was untimely, the Court turned to addressing the proper remedy. Although some district courts hold untimely motions in abeyance until the 30-day window expires, the Court affirmed the district court's decision to dismiss Mr. Alam's motion without prejudice, noting that it was better to have him refile "with the benefit of whatever additional insight he may have gleaned."

In this decision, the Court makes clear that there are no shortcuts around the exhaustion requirement for compassionate release in the Sixth Circuit. While this decision provides no comfort to the many at-risk inmates who currently live in fear of contracting the virus, defense counsel looking to file such motions should first check with their clients to see if they have initiated the administrative process before looking to seek relief from district courts. 

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