Few released from federal prisons in pandemic
Kirk Lawrence Brannan managed to win release from federal prison two years early, fleeing a Louisiana lockup where seven people had died from complications of COVID-19.
Pedro Muñiz got a Houston judge to let him out of a North Carolina facility where one medically vulnerable inmate freed himself by scaling a razor-wire fence.
Maria Neba hasn’t been so fortunate. A 55-year-old mother with terminal breast cancer, she is trying to avoid sick dorm mates as she seeks release from a women’s medical prison in Fort Worth.
As the coronavirus crisis raises concerns about mass infections at prisons and jails, few federal prisoners from Southeast Texas have cleared the gauntlet for compassionate early release.
Barriers remain despite a flood of pleas to federal judges and memos by Attorney General William Barr urging the Bureau of Prisons
to speed up the release of elderly and infirm inmates amid a historic pandemic.
Brannan, now on home confinement in Lake Jackson, said nights at the federal prison in Oakdale, La., were the toughest after the new coronavirus invaded the complex and began to spread. Inmates were “crammed in,” he said, and he mingled with 50 people per day, including two men with deep coughs and a senior citizen with a 103-degree fever whom he worries about.
“In the dorm, you could hear people coughing all night,” the 66year-old said. “One of my friends got really sick, he had medical issues and he was elderly. … They hauled him to the hospital.”
Federal prisons say 38 inmates and 22 staffers have contracted the virus at Oakdale, where officials halted testing as they are doing in all facilities with sustained transmission. Instead, the prison treats those with symptoms as if they are positive “to conserve valuable test
ing resources at these facilities,” an official said.
Across 122 federal prisons, 582 inmates and 321 staffers have contracted COVID-19 — with many more being monitored for possible exposure. Eighteen federal inmates have died from the disease, more than a third of them at Oakdale.
Brannan’s lawyer, Josh Schaffer, said he believes the federal prisons and courts are overwhelmed with requests for release. The timing of his petition to Chief U.S. District Judge Lee H. Rosenthal was auspicious.
“I think we captured lightning in a bottle by presenting this request to the right judge at the right time,” he said. “Oakdale was the Attica of the coronavirus,” Schaffer said, referencing the New York state prison where a riot in 1971 left dozens dead and spurred a national discussion about prison conditions.
The process to obtain a compassionate release is incredibly onerous, requiring sign-offs by seven or eight officials at different agencies, said Sharon Dolovich, director of UCLA’s Prison Law & Policy Program. The inmate petitions the warden for a medical review. Then the medical director, general counsel and director of the Bureau of Prisons must approve the request. A prosecutor must then get a federal judge to agree to a reduced term. If it’s a pre-1987 sentence, the warden sets a hearing before the parole commission, or otherwise releases the prisoner. Typically, this process takes months.
“None of this was designed for an emergency situation where you have to get people out immediately,” Dolovich said. “When the building is on fire, you don’t stop to ask whether all the t’s are crossed and the i’s are dotted . ... When the building is on fire you get people out.”
Barr’s March 26 memo urged prison officials to release elderly and medically vulnerable inmates during the pandemic to make sure “our institutions don’t become Petri dishes and it doesn’t spread rapidly.” Since that directive and a second, more urgent one issued April 3, 1,252 inmates have been released to home confinement.
Dolovich, however, stressed that most of these inmates did not walk out the door under compassionate releases. They’re not sick and infirm; rather, they are lowlevel offenders sent home to finish their terms.
Opposing the releases
A federal official said the department has continued to process compassionate release requests by sick and elderly inmates, with priority given to people who are terminally ill. In all cases, the decision on whether to grant such a motion
lies with the sentencing court, the spokesperson said.
Inmates may petition the Bureau of Prisons for compassionate release under the federal First Step Act. If they don’t hear back within 30 days, they may seek a compassionate release through their trial judge.
The Justice Department has “an obligation to maintain public safety and protect victims and witnesses from threats and retaliation” and to “safeguard the health and safety of those in our custody,” an agency spokesperson said.“COVID-19 presents real risks, but so does allowing serious criminals such as violent gang members and child predators to roam free.”
Brannan, a former Lake Jackson lawyer sentenced for mortgage fraud, is among just three inmates who have been granted compassionate release in the 43-county Southern District of Texas since officials declared a pandemic. His lawyer filed a request initially with the Bureau of Prisons, citing his high blood pressure as a risk factor. A week later he asked a federal judge. He said he didn’t wait the required 30 days, because the situation at the Louisiana prison was deteriorating so rapidly. Rosenthal took only nine hours to grant the release.
Another defense lawyer pushing for releases said prosecutors are handling compassionate release matters under seal in order to litigate cases involving sick and elderly inmates out of the public eye.
“I firmly believe that there are a great number of completely valid claims for compassionate release that the government is opposing unreasonably and on a wide-scale basis,” said Zachary Newland, who
is pressing for the compassionate release of Neba, the inmate with terminal cancer, and another client, a 78-year-old former doctor with a heart condition at the federal prison in Seagoville. “There’s no way to know the scope of the problem because everything is filed under seal.”
Yearlong petition
One of the prisoners released in the pandemic is Muñiz, 47, who had two years left on a drug sentence at a North Carolina facility where 66 inmates and 29 staff have become infected, and one inmate so fearful about catching the virus he climbed the fence, escaped through the woods and was trying to arrange a safe self-surrender. Four inmates have died at that prison north of Raleigh.
Muñiz had a petition before the Bureau of Prisons for a year and another pending for several months before U.S. District Judge Keith P. Ellison when the virus hit. Ellison released Muñiz on March 30 saying he was especially vulnerable, as a wheelchair-using amputee with end-stage renal disease, diabetes and arterial hypertension.
Others, such as Neba, the mother with stage IV metastatic breast cancer, are still waiting for the court to respond. Doctors have told her she has less than two years to live.
The former nurse and home health care clinic director is serving a 75-year sentence for a $13.2 million Medicare fraud scheme at a federal lockup in Fort Worth, where two inmates have already contracted COVID-19.
A pregnant inmate from her facility was in the intensive care unie on a ventilator after delivering her baby prematurely by emergency cesarean-section, according to local news reports.
Neba said everyone at the prison is sick — it’s a designated medical facility. With her compromised immune system, she thinks she wouldn’t be able to fight it.
“I have little boys,” she said, referring to her 9-year-old twins who are being cared for by their older sister. “I’m worried I’m going to die without being there for them.”
Prior to the pandemic, Neba’s lawyer, Newland, requested compassionate release several times, citing her medical condition. He is concerned that the medical facility isn’t following safety protocols to protect “the most vulnerable of the vulnerable federal inmates.” A judge ruled Tuesday that Neba needed to go back through the federal prisons applications process.
Dolovich, who has been tracking pandemic-related releases, said the Bureau of Prisons has few options for releasing inmates from crowded prisons without revisiting sentences.
Compassionate release is an option, she said, but the numbers formally being released this way are “vanishingly small.” With an infection rate of more than 4 percent in federal prisons, many people over 50 are at high risk if they get the virus, and they should be prioritized for release if possible, Dolovich said.
“There are almost certainly high-risk people in BOP prisons who have the virus, and they need to be removed,” she said. “It’s only if you think the lives of people in custody don’t count that you would think this policy is appropriate under the circumstances.”