by Daniel A. Rosen
Throughout the pandemic, The Marshall Project (TMP) has done thorough and comprehensive reporting about the impact of COVID in prisons and on prisoners. Staff writers Joseph Neff and Keri Blakinger recently looked at the statistics on compassionate release for federal prisoners during the pandemic and came up with some conclusions that come as no surprise to those familiar with the federal Bureau of Prisons (BOP).
The agency only produced the figures in response to a Congressional inquiry that stemmed from earlier Marshall Project reporting. In the fall of 2020, TMP published data showing that the federal BOP rejected or ignored 98% of compassionate release requests in the pandemic’s first three months. Lawmakers then demanded more data in December of that year, and the agency finally responded in April of 2021, allowing TMP to conduct an even more detailed analysis of the numbers provided.
Compassionate release is one of two ways that federal prisoners have sought an early exit from prison during the pandemic. The other is to apply for home confinement, which lets low-risk prisoners—still deemed as in-custody—finish their sentence in a halfway house or at home. That decision is entirely up to the BOP, but Congress expanded eligibility for the program, and Attorney General Bill Barr mandated additional releases. 23,700 prisoners had qualified for the home confinement program by mid-June of 2021.
Compassionate release is the other alternative to get out early, and the process isn’t simple. In 2019, pre-pandemic, just 1,735 federal prisoners applied for the program. Since COVID started, 31,000 requested release according to the BOP’s numbers. In 2019, the BOP director-approved 55 requests, an approval rate of 2%. The new agency director, Michael Carvajal, has approved just 36 compassionate release requests since the virus hit in March 2020—an approval rate of 0.1%. That’s 20 times lower than his predecessor’s.
Law professor, and former BOP prisoner, Shon Hopwood of Georgetown University called the BOP’s reduced release rate during the pandemic “mind-boggling.” He also said that the BOP “let people die in prison that shouldn’t have had to die.”
When federal prisoners apply for the program, a warden first reviews the application. If endorsed at that level—which happens just over 1% of the time—it gets to BOP headquarters, where it’s usually rejected. If a warden denies the petition or fails to respond within 30 days, prisoners can ask a judge to intervene and release them.
The BOP’s own data produced for Congress shows that of the 3,221 compassionate releases secured since COVID began, 99% of them were granted by federal judges, and usually then only over the agency’s objections.
Wardens aren’t obliged to offer much justification for their denial, in most cases using the vague standard that the applicant “does not meet criteria.” Of the 374 cases that wardens did forward to BOP’s central office for review, the agency rejected over 90%, without any cause given. The agency told Congress that several reasons, including opposition from prosecutors, lack of a release plan, or not wanting to minimize the prisoners’ offense could come into play in making that decision.
Prisoners who ended up with their request adjudicated in court often encountered resistance from federal prosecutors.
“In court, prosecutors were fighting release and saying that this person doesn’t have a condition that makes them vulnerable,” said Alison Guernsey, a law professor at the University of Iowa who reviewed the early release cases of every prisoner who died of the virus.
Thirty-five of the 256 federal prisoners who died of COVID were awaiting a decision on their early release paperwork. Over 49,000 prisoners in the federal system—almost one-third of the total—were known to have contracted the virus. Many more likely would have tested positive, if tested regularly, as was the case in many prison systems.
Sean McQuiddy was 54 years old and 23 years into a life sentence for selling crack when COVID hit. Two dozen other co-defendants in his case had already been released by the time he applied for compassionate release in August of 2020. McQuiddy was worried since he had asthma and was overweight. The warden denied his request, and he went to court.
Prosecutors fought his release arguing that he’d be safer in prison because no one had died yet from COVID where he was incarcerated. “COVID-19 is not fatal in most cases,” they wrote to the court. When he fell ill with COVID, McQuiddy was moved to a hospital and ventilated. His lawyer again requested release and prosecutors again opposed it, saying it was now unsafe to grant his request since he was infected. By the time the judge ruled on his renewed request, Sean McQuiddy had died from COVID.
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