WASHINGTON — Ernest Boykin III watched as the coronavirus pandemic 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 filed an emergency request in court for compassionate release in May, arguing he has underlying medical conditions — obesity, asthma, and high blood pressure, especially — that even the prosecutor acknowledged put him at risk of a severe case of COVID-19. The government opposed his release, however. Having served less than half of his sentence for drug and weapons crimes, Boykin thought it was a long shot.
When his lawyer called in mid-July to tell him that the judge had agreed to release him to home confinement, “it was like everything was in slow motion,” he said.
“This was like the best day of my life, like I had hit the lottery,” Boykin, a 41-year-old father of five, told BuzzFeed News, speaking by phone from his parents’ house in Washington, DC.
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.
Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community; inmates are usually released to home confinement or under the supervision of a probation officer. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.
Boykin is one of more than 800 inmates who have been granted compassionate release by a federal judge since March, according to data from the Federal Bureau of Prisons. Another 7,000 federal inmates have been released by the BOP to home confinement in the same period, after Attorney General Bill Barr directed the bureau to prioritize using its own release power for eligible inmates to minimize the spread of COVID-19. More than 150,000 federal inmates remain incarcerated.
Thousands of inmates are still exploring options to get out. Families Against Mandatory Minimums, just one of the groups that connect inmates with pro bono legal assistance, has fielded more than 3,000 requests for help since the start of the pandemic. They’ve been able to match approximately 1,200 inmates and family members with lawyers.
“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 the meantime, COVID-19 cases in prisons and jails continue to rise. As of Aug. 5, more than 100 federal inmates have died, and 1,807 have confirmed cases. Nearly 9,000 federal inmates, as well as more than 750 BOP employees, have recovered from the disease. There have been severe outbreaks in state and local jails as well; according to the Marshall Project, there have been nearly 80,000 reported cases among federal, state, and local prisoners in the United States.
“Everybody’s terrified,” said Deborah Golden, a prisoners’ rights lawyer. “Inside prisons, people know generally that illnesses spread really fast. Your garden-variety cold or the seasonal flu usually whips through a facility quickly because people are packed together; sanitation is tough. People have a lot of preexisting health conditions. And so in the places where I’ve talked to people, they’re just scared for their lives.”
Most of the cases reviewed by BuzzFeed News involved compassionate release petitions filed by people who were already convicted but also included requests for temporary release in pending criminal cases. Inmates with medical conditions that the Centers for Disease Control and Prevention has said increase the risk of catching COVID-19 or having a severe case of the disease — asthma, obesity, or high blood pressure, for instance — faced varying outcomes when they’ve gone to court, case records showed.
Some judges who denied release requests relied on the fact that there weren’t any confirmed cases of COVID-19 at a particular prison or jail, and sometimes that wasn’t a barrier. Some judges insisted inmates meet a threshold of having served at least half of their sentence, and other judges didn’t, as was the case for Boykin. Nearly all judges required proof of a specific medical condition — but in one case a judge approved pretrial release without it, noting that his pre-pandemic decision to jail the defendant had been a “close” call.
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.
"Everybody's terrified. ... They’re just scared for their lives."
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. The Virginia jail where Jackson was being held pending transfer to a BOP facility didn’t have confirmed cases at the time, but Chief US District Judge Michael Urbanski wrote that he was “concerned by the spread of the disease throughout prisons in Virginia.”
Less than a month later, a federal judge in DC, where Jackson had a separate conviction, ordered him to stay behind bars.
In denying Jackson’s release request, US District Judge Trevor McFadden noted that the crime he was convicted of in DC — possessing cocaine with the intent to distribute — was more serious than the supervised release violation he was convicted of in Virginia. But McFadden also disagreed with Urbanski’s assessment of the health risks at stake.
“As several judges have observed, a defendant is at risk of contracting COVID-19 whether he is in prison or not,” McFadden wrote. “Indeed, Jackson’s request to be released from [the Central Virginia Regional Jail] where he reports no COVID-19 cases — to home confinement in Washington, D.C. — where there are many — is particularly unpersuasive.”
Jackson is appealing McFadden’s decision. His lawyer declined to comment, citing the pending case.
In compassionate release cases, judges have to decide if an inmate’s situation presents “extraordinary and compelling reasons” to reduce their prison sentence. In some cases reviewed by BuzzFeed News, judges found that an inmate’s medical conditions met the standard given the pandemic, but public safety and other factors outweighed the health risks.
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. The judge also noted that the federal prison where Evans was being held in Danbury, Connecticut, was experiencing a COVID-19 outbreak; as of August, 89 inmates had recovered from the disease, and one had died.
But Sullivan wrote that Evans’ participation in a “manipulative and sinister” extortion scheme, lack of family support, minimal employment history, and failure to show he no longer posed a danger to the community weighed in favor of keeping him in prison. Sullivan wrote that the 60-month sentence he originally imposed was still necessary.
Older inmates were more likely to win release — judges have relied on the CDC’s guidance that people over 65 are at a higher risk — but age wasn’t always a guarantee of a certain outcome. A 78-year-old man convicted of drug trafficking crimes who presented evidence that he had a range of ailments, including chronic heart failure, was denied release. A 29-year-old man who didn’t present evidence of any underlying medical conditions was approved for home confinement while waiting for sentencing on his conviction for distribution of child pornography.
Inmates who had served less than 50% of their sentence were less likely to win release, but there were exceptions, like Boykin’s case. US District Judge Ketanji Brown Jackson in May agreed to release Morris Johnson to home confinement, even though he’d only served 29% of a 41-month sentence for weapons-related offenses. The judge noted that she’d previously found he wasn’t a flight risk or danger to the community and had a “good track record” of complying with release conditions when she allowed him to remain free pending trial. Johnson’s lawyer declined an interview request.
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.
"Judges are very hesitant to release people who are incarcerated prior to the end of their sentences."
Prisoner advocates have tried class actions as a way to get larger groups of inmates released through a single case, or at least moved to facilities with fewer confirmed COVID-19 cases; the lawsuits have focused on inmates with medical conditions that put them at a higher risk of contracting the virus. So far those efforts have been largely unsuccessful.
“Judges are very hesitant to release people who are incarcerated prior to the end of their sentences, particularly in large numbers. They would like to find other ways of helping — and I think that’s probably true of most of the judges, that they would like to make this a better situation — but they are concerned about actually letting people out,” said Maria Morris, a senior staff attorney with the American Civil Liberties Union’s National Prison Project.
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. He issued another decision in May finding prison officials had failed to fully comply with his first order.
But on June 4, the US Supreme Court put Gwin’s orders on hold while the Justice Department appealed. Five days later, the 6th Circuit reversed the Ohio judge, finding that the inmates failed to show the BOP was “deliberately indifferent” to the risks of COVID-19 at Elkton.
As the situation worsens in some BOP facilities, some inmates who lost their first attempt at a release are renewing their requests. BuzzFeed News identified at least one case where a judge is revisiting his previous decision.
US District Judge Paul Friedman in June denied compassionate release to Sheila Scutchings, who is serving a 54-month sentence for her role in a fraud conspiracy. When Scutchings first filed her request in April, there were only two confirmed COVID-19 cases at Federal Medical Center Carswell, a prison facility in Fort Worth, Texas. Friedman, a federal judge in DC, noted the small number of cases in his ruling.
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. Scutchings’ lawyer, Joseph Conte, declined to comment.
Prisons and jails were predictable hot spots for outbreaks of COVID-19. Incarcerated individuals live, eat, and sleep in communal spaces. Even if masks, cleaning supplies, and hand sanitizer are available — and Golden said that isn’t always the case — inmates can’t enforce the behavior of those around them.
Inmates with limited access to the outside world have struggled to get up-to-date information about the disease and what’s happening in their own prison, advocates told BuzzFeed News. Prisons have restricted in-person visits, including with lawyers, and that can make it harder for inmates to pursue release.
Boykin was serving his sentence at Rivers Correctional Institution, a privately operated federal prison. When the pandemic first hit in the spring, he said he didn’t think prison staff took it seriously; there was no social distancing and no masks, he said. Even after the facility started taking precautions and distributing masks, enforcement was “kind of lax,” he said.
“I was really, really scared that I was going to die in prison,” he said.
"I was really, really scared that I was going to die in prison."
Rivers has been on the low end of confirmed cases; 20 inmates have recovered, and none have died so far. Five inmates currently have confirmed cases, according to the BOP. But other federal prisons have had hundreds of cases. The Butner complex in North Carolina has had one of the worst COVID-19 outbreaks across the Bureau of Prisons to date; nearly 800 inmates have recovered from the disease, and 25 have died, according to BOP. Seventy-five inmates at the facility currently have the disease.
“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.
BOP spokesperson Justin Long declined an interview request, and emailed BuzzFeed News an overview of how the agency has responded to the pandemic. To try to stop the disease from getting into prisons, Long said, officials limited inmate transfers between facilities, suspended in-person visits and staff travel, and limited access for contractors and volunteers. As of mid-June, Long added, all new inmates have been tested for COVID-19 and are being quarantined for at least 14 days before going into the general population.
To contain the spread of COVID-19 within facilities, Long said, prison officials have limited how much inmates can move around and congregate. Inmates who test positive are placed in isolation. Soap and cleaning supplies are available, and all inmates and staffers have received masks. Long said that UNICOR, the government-owned company that operates federal prison factories, is producing cloth face masks and distributing them to reserve surgical masks for medical procedures.
“We are deeply concerned for the health and welfare of those inmates who are entrusted to our care, and for our staff, their families, and the communities we live and work in. It is our highest priority to continue to do everything we can to mitigate the spread of COVID-19 in our facilities,” Long wrote.
The incarcerated individuals who continue to petition federal judges for release argue the BOP has failed to do enough to protect inmates and staffers during the pandemic, however, especially those who are older and those who have preexisting medical conditions.
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. By comparison, from 2013 to 2017, the bureau approved 312 applications for compassionate releases, according to an analysis of data by the Marshall Project and the New York Times.
The case law around prisoners’ releases during a pandemic is developing in real time, which creates challenges for lawyers and judges who are used to looking to past cases for guidance. Deborah Golden, who unsuccessfully argued for compassionate release for a 63-year-old federal inmate, said judges want information that changes what they knew when a person was sentenced — evidence of an outbreak at a prison, for instance, or underlying health conditions that present a specific risk related to COVID-19.
“You really do have to show something, from what I’ve seen, above and beyond,” Golden said.
One area where federal judges nationwide haven’t agreed is whether inmates have to first petition the BOP to seek compassionate release on their behalf before they can go directly to a judge. The First Step Act says inmates are supposed to first apply to the warden, and then either go through an appeal process if that official denies their request or wait 30 days from when they applied before going to court.
Judges in the DC federal court have allowed cases to go forward where inmates didn’t satisfy the 30-day waiting period, but judges elsewhere haven’t. In April, the US Court of Appeals for the 3rd Circuit, which covers Pennsylvania, Delaware, and New Jersey, called an inmate’s failure to go through the BOP process a “glaring roadblock” to their release.
Ernest Boykin said the compassionate release process seemed designed to discourage inmates from pursuing it all the way to court. He said he had friends at the Rivers prison facility with medical issues that put them at a higher risk of a severe case of COVID-19, such as asthma and obesity, but they didn’t have the family and legal support that he did to press their case.
“The way they have the system set up, they know that people are not going to follow through,” he said.
Many inmates are turning to the compassionate release process because few other legal avenues are available. They can file a lawsuit arguing that conditions in a particular prison are unlawful or unconstitutional, but the federal Prison Litigation Reform Act restricts court oversight of prisons and requires inmates to first exhaust an internal grievance process.
"The way they have the system set up, they know that people are not going to follow through."
Katie Chamblee-Ryan, a senior attorney with the Civil Rights Corps who has been working on prisoner release litigation during the pandemic, said the PLRA has placed “needlessly cruel” restrictions on prisoners’ ability to get relief from the courts in a dangerous and fast-moving situation.
“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.”
Although prisoner advocates and federal inmates haven’t been able to use class actions to secure large-scale releases, they have had some success convincing judges to order prison officials to adopt policies to make prisons and jails safer during the pandemic.
The Civil Rights Corps filed a class action in April in federal court in Maryland seeking the release of “medically vulnerable” inmates at the Prince George’s County jail. The lawsuit also sought an order requiring officials to take steps to protect inmates against the spread of COVID-19, such as providing individual supplies of soap and other cleaning products, creating social distancing policies, and increasing access to phones so prisoners didn’t have to crowd together while they waited to make calls.
The Civil Rights Corps filed dozens of firsthand accounts from inmates who described a lack of social distancing and inadequate or inaccessible medical care. In May, US District Judge Paula Xinis entered an injunction ordering county officials to develop a “comprehensive written plan” for testing, providing personal protective equipment, and educating staff about how to care for sick inmates. She declined to order the release of inmates, however. In June, the judge declined to extend her injunction, finding state officials had come up with a “reasonable” response to the pandemic.
The organization is still litigating the case but is also trying to pressure state officials to intervene. It launched a project in July called “Gasping for Justice,” recruiting actors and artists, including Jesse Williams, Fiona Apple, and Alec Baldwin, as well as prisoners’ rights advocates and other volunteers to record themselves reading the inmates’ statements out loud.
“The people who have been there since the pandemic began saw a huge outbreak at the jail and no response from jail officials. They basically feel like sitting ducks,” Chamblee-Ryan said of the inmates she’s representing.
On Aug. 5, the Supreme Court voted 5-4 to halt an injunction entered in a federal class action in California that required heightened public health measures related to the pandemic at a county jail in Santa Ana, California. The court’s four more liberal justices disagreed with the decision, with Justice Sonia Sotomayor writing that the court was “leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care.”
Boykin said he’s in touch with friends at the Rivers prison, and they’re still worried about the disease spreading there. He’s enjoying his freedom; he’s been able to have socially distanced visits with his kids, who live with their mother, and savored the ribeye steak he had for dinner when he first arrived back in DC, but he said he wants to find ways to help those who are still in prison.
“People are being left to die,” he said. ●
Judge Ketanji Brown Jackson handled the case of Morris Johnson. A previous version of the story incorrectly identified the judge.