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US federal prisoner release

COVID-threatened inmate transferred to home confinement

A Freshfields pro bono team has helped secure the release of an elderly, non-violent federal prisoner facing a high risk of severe illness or death should he contract the coronavirus.

Introducing Mr. Kipp

In 2017, our client, Michael Kipp, was convicted in a federal court in North Carolina for his alleged involvement in a multi-million-dollar accounting fraud scheme at his employer, Swisher Hygiene, a Charlotte-based sanitary services company.

Mr. Kipp, represented by partner Eric Bruce while at his previous law firm, was later sentenced to 4.5 years imprisonment, which began when Mr. Kipp surrendered himself in June 2018 to the minimum-security section of the federal correctional institution in Edgefield, South Carolina.

Then, in 2020, almost half-way into Mr. Kipp’s 4.5-year sentence, COVID-19 entered the United States and the federal prison system, with grave consequences to the nation and federal inmate population.

A vulnerable client

In late March 2020, US Attorney General (AG) William Barr released a memo (PDF) encouraging the Federal Bureau of Prisons (BOP) to release to home confinement those inmates for whom COVID-19 posed a major health risk but who were non-violent and unlikely to reoffend.

According to guidance issued by the US Centers for Disease Control and Prevention, Mr. Kipp faced an increased risk of severe illness or death should he contract COVID-19, as he is over the age of 65 and suffers from various medical conditions.

At the time, there were no coronavirus cases reported at the Edgefield facility. However, the risk of infection and severe illness – or even death – remained, so we were keen to help get Mr. Kipp released to safety and help save his life.

Two routes out of prison confinement

There were two ways our client might be released: compassionate release under a federal statute, 18 U.S.C. § 3582; and release to home confinement at BOP’s discretion and in accordance with AG Barr’s memorandum.

Compassionate release

Under the federal compassionate release statute, a US federal court may reduce a term of imprisonment if it finds that “extraordinary and compelling reasons warrant such a reduction” and the “reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

On April 27, we filed a court motion seeking the compassionate release of Mr. Kipp in light of the “extraordinary and compelling” circumstances created by the COVID-19 pandemic. We argued that Mr. Kipp was highly vulnerable should he contract COVID-19 and the conditions at Edgefield were not sufficient to stop the spread of the virus. We also pointed out that Mr. Kipp was a non-violent offender, was unlikely to reoffend, and had worked in the facility’s law library, helped organize regular Catholic rosary services within the facility, and served almost half his sentence.

Unfortunately, while the motion was pending, the first Edgefield inmate tested positive for COVID-19. Nonetheless, approximately one month later, the court denied the motion for Mr. Kipp’s release.

Home confinement

Running in parallel with the motion for compassionate release were our attempts to have Mr. Kipp released through BOP’s home confinement discretion.

With Mr. Kipp satisfying all of BOP’s factors for release to home confinement, the BOP twice determined to release Mr. Kipp – once in April and once May – but later reversed those decisions.

In the first instance, BOP retroactively applied a change to its release policy, which meant Mr. Kipp no longer met its release conditions; in the second, BOP reversed its decision after Mr. Kipp asked to speak with our team (his lawyers) in order to understand the relevant paperwork that BOP was asking Mr. Kipp to sign and whether he would be permitted to work while on release.

A letter of last resort

Despite these setbacks, our commitment to Mr. Kipp remained undimmed. The growing number of COVID-19 cases in Edgefield was worrying – over 90 inmates and nearly 30 prison staff had tested positive by the first week of August. Having exhausted all official routes, we opted to write to the warden of the institution directly, urging him to save Mr. Kipp’s life by releasing him to home confinement.

In mid-August, we finally received the happy news that Mr. Kipp would be transferred by BOP to home confinement in North Carolina.

On his return home in late September, Mr. Kipp said: “It was really humbling having Eric and Selbie helping me through this challenge. I can’t say enough about their professionalism and expertise, along with the lengths they went to on my behalf. I’m proud to have them as my counsel. I’m sure Freshfields is equally proud to have them as representatives of the firm.”