Out of two dozen responses to sentence reduction requests from inmates concerned about their health amid the pandemic, federal judges in Colorado approved only three in the final four months of the year.
Known as compassionate release, a 2018 change in the law now allows federal inmates to petition a court directly if there are “extraordinary and compelling reasons” to leave prison, which could mean an elevated threat to an individual’s life from COVID-19. However, an inmate’s susceptibility is not the only factor, and different judges may apply the criteria differently.
“The problem, as with many cases in law, is the interpretation,” said Jackie Fielding, a fellow and counsel at the Brennan Center for Justice at New York University School of Law. While some judges may interpret a COVID-19 risk factor like obesity or smoking to weigh heavily in the inmate’s favor, “others are saying that unless you can prove that there’s been enough transmission within your facility specifically, it’s not extraordinary and compelling enough.”
The American Bar Association in December advised that courts were indeed looking at the Centers for Disease Control and Prevention's identified risk factors in addition to pre-pandemic legal requirements, directing lawyers to "use their creativity in developing arguments for compassionate release."
Colorado Politics reviewed 24 opinions that judges in the U.S. District Court in Colorado published from September through December in response to compassionate release requests. (An additional request, which was not technically in the form of a compassionate release motion, was also denied.) Judges also reviewed other types of release requests related to inmates’ fears of COVID-19, including a temporary release from custody pending sentencing, pretrial release to a halfway house and release from U.S. Customs and Immigration Enforcement detention for an asylum applicant who contracted COVID-19.
In many cases, judges analyzed inmates’ circumstances in great detail.
On Dec. 26, Judge William J. Martínez rejected an application for compassionate release in what he admitted was a “very close call.” The inmate had received a sentence of 40 years for bank robbery and had served nearly 17 years at the time of his request. The man, 56, had an exemplary record while incarcerated, a minimum risk of recidivism and medical conditions that included coronary artery disease, hypertension, chronic lung disease and a past heart attack.
"I have earned 40 college credit hours with a 4.0 GPA from Pueblo Community College and certificates in both Renewable Energy and Business Management," the man explained in his handwritten compassionate release motion, adding: "May I be granted just one second chance".
Nevertheless, the inmate’s crimes were “among the most serious and violent crimes that the undersigned has encountered,” Martínez determined. In three years, once the inmate had served at least half of his sentence, a request for compassionate release “would enjoy greater equities in its favor.”
Beyond finding that an inmate’s health condition or the level of prison transmission was not severe, judges commonly denied requests to those who were not 65 or older, had not served 75% of their sentence or whose family circumstances did not merit release.
The U.S. Sentencing Commission’s 2018 guidelines list those factors, plus other reasons “as determined by the Director of the Bureau of Prisons” as extraordinary and compelling circumstances.
However, in her two opinions denying compassionate release, Senior Judge Marcia S. Krieger advanced an argument separate from the established criteria: that the inmates may be safer from COVID-19 in prison than outside of it.
“[R]elease from custody would not ensure that he would not contract COVID-19,” Krieger wrote in the case of a man whose health problems weighed in favor of release, but who also had a lengthy and violent criminal history. “Indeed, his release into the community – to socialize, to work, to shop, etc. – could increase, rather than decrease his risk of contracting the disease.”
“In some ways, an argument could be made,” she concluded, that “continued incarceration serves to protect him against COVID-19.”
While it is true that some inmates who applied for sentence reductions resided in facilities with relatively successful containment of the novel coronavirus, the Federal Defenders of New York have noted a rate of 86 COVID-19 infections per 1,000 people within the Bureau of Prisons, an incidence nearly five times higher than the U.S. as a whole.
As of January 14, the bureau reported 190 federal inmate deaths from the disease, with 38,535 prisoners having recovered, out of a population of 123,052 in bureau-managed facilities.
Virginia L. Grady, the federal public defender for Colorado and Wyoming, declined to comment on the subject of compassionate release.
“I think we need to acknowledge at a certain point what is more important: preserving people’s lives and allowing them to return to their communities because they haven’t finished their punishment,” said Fielding, with NYU’s Brennan Center, “or if you want to stand so firmly on these retributive principles that you're willing to endanger somebody’s life because you don’t want to relax their punishment.”
A previous Colorado Politics analysis covering the period from March through August found that five out of 42 court opinions, 12%, resulted in a successful compassionate release. Two judges, Martínez and Christine M. Arguello, issued half of the opinions and did not grant a single sentence reduction.
In two of the three compassionate releases that Colorado’s federal judges approved in the last four months of 2020, two of them fit under the category of “death or incapacitation of the caregiver of the defendant’s minor child or minor children,” in the words of the U.S. Sentencing Commission’s handbook.
On Nov. 6, Judge R. Brooke Jackson cleared a woman for release who was serving a 30-month sentence for mail fraud. She gave birth in prison, and the responsibility was on the grandmother to care for the child. However, the grandmother’s job and health issues created additional burdens.
Noting that the woman had served 85% of her sentence, Jackson determined the child’s need to be with its mother qualified as an extraordinary and compelling circumstance.
“The Court hopes that being reunited with the baby she has hardly seen and the knowledge that any new conviction is likely to take her away from the child for an extensive period will be enough,” he wrote, “to develop respect for the law and the rights of others."
In December, Martínez granted a sentence reduction to an inmate serving time on drug, identity theft and money laundering charges. However, the applicant had only served 28 months of his 66-month sentence — significantly less than the 75% threshold in the sentencing guidelines. Furthermore, the 66-month sentence was already less time than recommended for his offenses.
Nevertheless, Martínez’s decision centered almost entirely around the man’s ex-wife, who suffered from severe cancer and was the only caregiver besides himself for their children. The inmate’s crimes did not involve violence and, while incarcerated, he comported himself well.
“This case presents extraordinary extenuating circumstances, and given the fairly unique facts of this case, justice more than amply supports the Court’s decision to exercise its discretion,” Martínez concluded.
The final grant of compassionate release also came from Jackson, who in effect waived the six-month sentence that an inmate would have served for a firearm offense in Colorado. The man, who was in poor health and at elevated risk of contracting COVID-19, was 70% of the way through a 126-month sentence for crimes in Virginia. He was to serve the brief Colorado sentence afterward, until Jackson’s order.
The Marshall Project, a news organization focused on the criminal justice system, released findings in October that between March and May, 10,940 federal prisoners applied for compassionate release. Such requests must first go to wardens, who have 30 days to respond. If they do not, prisoners may petition the courts directly — although several judges in Colorado pointed out where inmates failed to pursue the administrative route correctly before filing their motions.
Of those requests, there were approvals in only 156 instances. Including judicial grants of compassionate release, the number amounts to more than 1,600.
The Bureau of Prisons reports more than 2,600 compassionate releases in total since the enactment of the First Step Act, the 2018 legislation that provided the judicial workaround for inmate requests. While compassionate release existed prior to 2018, the bureau only approved 6% of applications between 2013 and 2017, and 250 people died awaiting a decision.
In a recent report providing policy recommendations for the Biden Administration, the Brennan Center suggested the Bureau of Prisons proactively identify vulnerable inmates for release. The CARES Act, and a subsequent memo from then-U.S. Attorney General William Barr, granted greater flexibility to the bureau in moving inmates into home confinement, using factors similar to those judges apply in compassionate release cases. The Marshall Project reported in October that less than 5% of the prison population benefited from the change.
Cynthia Orr, a lawyer in San Antonio and the past chair of the American Bar Association's Criminal Justice Section, believed that inmates know about their options, but may not understand how to properly pursue release.
"People eventually will be released," she said. "I think we're recognizing that our wisdom in 'we just need to lock up the bad people and throw away the key' does not fly at all."
Orr, who successfully obtained a compassionate release for an 80-year-old inmate in Mississippi through the Bureau of Prisons, also favors reinstating federal parole, which the Sentencing Reform Act of 1984 abolished. She worries that people with money who can hire an attorney may disproportionately benefit from the program, as is the case generally in the justice system.
"I just think this ad hoc system we have now," Orr added, "that's not a fair process."
Correction: The original version of this article misstated the sentence length of one individual who received compassionate release. It is 126 months.