With little legal precedent for a global pandemic, judges are deciding on a case-by-case basis how to weigh the risks of COVID-19 in prisons.
spread this spring through the federal prison in North Carolina where he was serving a 15-year sentence. There weren’t any confirmed cases in his unit yet, but he was afraid he would die if there were.
Boykin’s comparison to the lottery isn’t far off. A BuzzFeed News review of more than 50 cases filed in the federal district court in DC showed that with little precedent for a flood of release requests during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others.
“We were hoping ... that judges would not want to be a party to this ongoing, slow massacre in the prisons. And they’re not, and that’s good,” said FAMM President Kevin Ring. However, he said, when it comes to how judges are analyzing release requests, “it’s not consistent across jurisdictions — there are some judges who have been stricter and some who have been more lenient.”
In two cases reviewed by BuzzFeed News, inmates serving multiple sentences related to different cases received conflicting decisions, with one judge granting their release and another denying it.In late May, a federal judge in Virginia approved Arnold Jackson’s request for home confinement, finding that his health condition, which included diabetes, asthma, and obesity, put him at a high risk of a severe case.
US District Judge Emmet Sullivan, the judge who granted release to Boykin, denied release to Tony John Evans, who was convicted in a multimillion-dollar extortion scheme. Sullivan found that Evans presented medical conditions, including obesity, high blood pressure, and sleep apnea, that cleared the “extraordinary and compelling” standard.
Some judges who granted release wrote that they thought the risk of being sent back to prison as COVID-19 continued to spread would give those who were released an incentive to stay out of trouble. Some judges who denied release focused on the greater risk of exposure for probation officers who would have to monitor inmates on home confinement or supervised release.
In April, US District Judge James Gwin ordered the BOP to immediately review if “medically vulnerable” inmates at the Elkton, Ohio, prison were eligible for release, and to transfer inmates who weren’t eligible to a facility with a lower risk of COVID-19 exposure. Gwin wrote that the BOP was fighting a “losing battle” to contain the disease at Elkton, which by April had 59 confirmed cases among inmates and six deaths.
But by mid-July, there were more than 500 confirmed COVID-19 cases at Carswell. Scutchings renewed her request, and Friedman issued an order on July 27 saying he’d reconsider. The spread of the virus at the facility was “of concern,” he wrote. He ordered the government to file an update in late August detailing daily infection rates at the facility. As of Aug. 5, there were 150 inmates with the disease and 392 who had recovered; four inmates have died.
“One of the things that we’ve heard at Butner, which is where a lot of our information has come from, is that people will be lying in their beds, and no one really knows how sick they are until they collapse and have to be taken out on a stretcher. At which point who knows how many people around them have been infected,” Morris said.
Prior to the First Step Act, passed by Congress in 2018, inmates could not petition for compassionate release on their own; only the BOP could file a request in court. Of the 1,168 compassionate release orders issued by judges since it became law in December 2018, 829 have been granted since March this year, according to BOP data.
“This law has a vice grip on federal courts,” Chamblee-Ryan said. “It allows extremely narrow, extremely circumspect measures only, and really hampers their ability to intervene when, as they so often do, prisons and jails fail to protect the rights of the people inside of them.”
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