Court and Law

A prosecutor’s positive COVID-19 test has renewed health concerns about resuming court in El Paso County during the pandemic.

The judges of the U.S. District Court for Colorado have granted 12% of inmates’ requests for early release due to concerns about their health during the COVID-19 pandemic.

A Colorado Politics review of 42 court opinions issued between March 1 and Aug. 31 found that only in five coronavirus-related instances did a judge agree to “compassionate release” — a decision that a 2018 law empowered courts to make if certain circumstances apply. In Colorado, six judges issued opinions for compassionate release requests. Two judges who oversaw half of the requests did not grant a single release. One of them contended that an inmate who contracted COVID-19 in prison should remain there so as not to infect others.

“Am I surprised at 12%? No. Is it right? Is it wrong? I don’t know,” said Christie Donner, executive director of the Colorado Criminal Justice Reform Coalition. “But I know there are a substantial number of people in the state system — I’m assuming this has got to be true in the federal system as well — who are at very high risk of COVID infection due to underlying medical conditions who do not meet statutory criteria because they are, today, not sick enough.”

Under federal law, an inmate can petition the Bureau of Prisons for compassionate release. The First Step Act, which President Donald Trump signed into law in December 2018, provided a remedy if the bureau took no action: after 30 days the inmate can bring a motion before a judge, who may impose probation or supervised release on the unserved portion of the prison sentence. The bureau reports 1,498 such releases since the law's enactment.

Defendants who are at least 70 years old, are at least 65 with chronic or serious medical conditions, or who experience the death or incapacitation of certain family members qualify for “extraordinary and compelling reasons” for release. However, during the era of COVID-19, judges have had to apply pre-pandemic criteria to a unique moment in history.

“This is oversimplifying, but they essentially have to be on death’s door,” said Donner. “What does that mean in the era of COVID, when we know that people with pre-existing medical conditions who don’t necessarily present with that level of disability, but should they get infected it could kill them?”

"The Court sincerely hopes it will not"

In the federal opinions issued in Colorado, most inmates presented some medley of conditions that would put them at elevated risk: obesity, diabetes, hypertension, asthma. Some Black and Hispanic inmates pointed to increased risk of death by nature of their race. One inmate was low risk based on his health factors, but already tested positive in custody once.

“[T]he Government does not contest that its efforts have been unsuccessful in many other prisons, nor that the virus which causes COVID-19, once introduced into a prison population, can spread very rapidly due to prisoners’ inability to socially distance,” wrote Judge William J. Martínez in the case of an inmate with chronic obstructive pulmonary disease, diabetes and hypertension — but whose facility had no reported cases of the disease.

Martínez, who denied all 11 compassionate release motions brought before him, added: “If COVID-19 remains as threatening in three years as it is today (the Court sincerely hopes it will not), or a comparable health threat exists at that time (ditto), a motion for compassionate release brought at that time would enjoy greater equities in its favor.”

In another instance, Martínez wrote to one inmate with no underlying health conditions convicted of a drug crime that “while 228 inmates have at some point tested positive for and another 8 have died from the virus at FMC Lexington, there are currently zero confirmed cases of COVID-19 at this facility....By now, many courts have denied prisoners’ motions for compassionate release even when there is a significant number of active COVID-19 cases at their facilities.”

More than one-quarter of compassionate release decisions pertained to an inmate who had at least one drug-related charge. Only one such case received compassionate release. Chief Judge Philip A. Brimmer converted the remaining prison sentence of a woman described as morbidly obese and a “drug courier” to 16 months of home detention. A factor in his decision was the level of outbreak at the Carswell facility in Fort Worth, Tex. where she resided.

“[T]he Court cannot ignore the background conditions at FMC Carswell, where over five hundred cases of COVID-19 have been identified and fifteen inmates are currently positive for the virus," Brimmer wrote. “While the Bureau of Prisons is taking extensive precautions to prevent the spread of COVID-19, those precautions have not worked as well at FMC Carswell.”

The Brennan Center for Justice, based in New York City, found that nearly 3,800 federal inmates and 460 prison staff were positive for COVID-19 as of July 28. One hundred two people died and more than 7,000 recovered. By mid-April, the bureau reportedly released 1,300 of its 170,000 inmates to home confinement.

However, in a May decision from the U.S. District Court in Eastern Tennessee, the government argued and the court agreed with the notion that the “mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release.”

Colorado's federal judges echoed that sentiment, writing in multiple cases that converting lengthy unserved sentences to home supervision would amount to re-sentencing the defendant, rather than an early release.

Incarceration not serving a purpose

Of the five Colorado cases granting compassionate release, four of them involved money laundering, mail fraud or wire fraud, or some combination of those charges. In addition to the inmates’ health, the question of fair treatment weighed on the side of release.

In one instance, the perpetrator of a Ponzi scheme who “could look a retiree in the eye and take her life savings, knowing she would never get them back” was granted release, after Brimmer noted the inmate developed dementia. Incarceration “does not serve a punitive purpose if he does not know that he is being punished or why,” Brimmer explained.

Brimmer also granted release on another inmate's 87-month sentence because “it is unlikely that would-be embezzlers would commit crimes hoping that a global pandemic and documented health risks would offer them early relief from incarceration.”

However, for an inmate convicted of stealing checks and who had no underlying health conditions, Judge Robert E. Blackburn denied her release on the grounds that, given the economic turmoil of the COVID-19 era, the types of crimes she committed had a “more substantial” danger now.

In the only compassionate release opinion not issued by Brimmer, Judge R. Brooke Jackson sided with a doctor who illegally distributed opioids, despite noting that the defendant failed to take responsibility for his actions and accused the government of "ethnic cleansing" in a “bizarre” courtroom speech. Nevertheless, Jackson believed the doctor’s accurate diagnosis of his own underlying health conditions and the assumption that losing his medical license and the accompanying “humiliation” were “the greatest punishments that could be inflicted on this individual” necessitated release.

Bloomberg reported in May that in the first two months of the pandemic, federal judges ruled on 400 compassionate release motions, compared to 16 in March and April 2019. Many judges, as a consequence, are aware that the pandemic entails a close examination of the compassionate release law in the wake of an unforeseen crisis.

In Colorado, judges denied many of the compassionate release motions on the grounds that inmates had not exhausted their administrative options with the Bureau of Prisons, namely the 30-day review window. However, “30 days when the statute was passed and 30 days in the world of COVID-19 are very different,” wrote Judge Laurie J. Michelson in the Eastern District of Michigan. “Congress likely did not contemplate that a once-in-a-lifetime pandemic would lead hundreds of federal prisoners to seek compassionate release all within a four-week window.”

Better off in prison?

The judicial discretion illustrates that, despite a common set of determining factors that include the inmate’s health conditions, the caseload at their facility, the amount of their sentence already served, and their risk to the community, the treatment of cases is far from standard.

Judge Marcia S. Krieger denied compassionate release in all three of her opinions, two of which involved inmates convicted of fraud. For a 62-year-old inmate who had cardiovascular concerns and believed himself to be a “sovereign citizen,” Krieger denied his release in part because she questioned whether he would be safer from COVID-19 inside the Big Spring, Tex. prison than outside of it.

“His risk while incarcerated at Big Spring must be compared to his risk that he would face outside of prison. This requires not only calculations as to infection rates in the community where he would be located, but information as to the residents and visitors that he would likely encounter and what protective measures he would take,” Krieger wrote.

She explained that if the defendant saw his friends and family without distancing, his risk of contracting the disease “may actually be greater if he is at liberty and if he is in FCI Big Spring. Absent evidence from which the Court can compare risks of infection, it cannot conclude that [the defendant] would necessarily face a reduced risk of infection if released.”

According to Federal Defenders NY, the Bureau of Prisons has an infection rate five times greater than the U.S. as a whole.

In another case, a 24-year-old inmate petitioned for compassionate release, saying he needed psychological treatment but could not receive it due to COVID-19 shutting down prison programs. Krieger, in her opinion, suggested if the inmate had that much trouble getting treatment in prison, he could be worse off outside of it.

“The COVID-19 pandemic does not just affect prisons, it affects the entire nation and services that might once have been readily available in communities are also subject to restrictions and cancellations,” she wrote. The inmate’s release “would hinder, rather than promote, his ability to obtain the continuing psychological treatment he requires.”

The notion that an inmate is safer in prison "flies in the face of what we're seeing. The numbers speak for themselves," said Elizabeth A. Blackwood, counsel at the National Association of Criminal Defense Lawyers. "I don't think anyone would rather be in a prison facility than at home where they can have a doctor of their choice."

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