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Incarcerated People Faced Huge Disparities Trying To Flee COVID-19 In Prisons

New data show federal judges granted compassionate release petitions at dramatically different rates depending on their location.

Posted on June 11, 2021, at 4:55 p.m. ET

Brendan Mcdermid / Reuters

The Metropolitan Detention Center, operated by the Federal Bureau of Prisons, in Brooklyn

WASHINGTON — Incarcerated people who petitioned for compassionate release as the coronavirus pandemic raged through prisons and jails last year faced dramatically different outcomes depending on where their judge was located.

Federal judges approved more than 2,500 petitions for compassionate release in 2020, roughly 21% of the more than 12,000 requests filed, according to new data released this week by the US Sentencing Commission. Oregon had the highest rate of approval; federal judges there granted 68.5% of compassionate release requests (63 out of 92). Judges in the US Virgin Islands granted zero requests, although they only fielded five petitions.

For incarcerated people, the chances of winning compassionate release across the nation’s 94 federal court districts spanned the wide gap between those two extremes. Judges have focused on whether a person faced a higher risk of a severe case of COVID-19 because of their existing health problems or age, but having an underlying medical condition or being older didn’t guarantee success. The vast differences in outcomes that incarcerated people faced depended on which court they petitioned and underscored the largely untested and at times inconsistent legal landscape as they tried to get out of COVID-19 hot spots.

US District Judge Charles Breyer, the lone member of what should be a seven-person US Sentencing Commission, said in a phone interview that the “fairly large disparities” reflected the fact that the commission hasn’t had a quorum since 2018. “I am the commission,” he quipped. The First Step Act, a package of criminal justice reforms that Congress passed in late 2018, made it easier for incarcerated people to petition courts for compassionate release. But because the commission hasn’t had a quorum for years, it hasn’t been able to change the guidance that judges rely on in deciding these cases — changes that could have helped ensure a more “uniform” approach during a pandemic, Breyer said.

“We were directed by Congress to set up criteria for this, and of course at the time we didn’t have and we still don’t have a quorum to act,” Breyer said. (Former president Donald Trump’s picks for the commission didn’t receive votes in the Senate, and President Joe Biden has yet to announce nominees.)

Throughout the past year and a half, the way judges issued compassionate release decisions showcased vastly different approaches to balancing the health risks that people faced in prisons as COVID-19 continued to spread against the other factors that traditionally go into these decisions. This included things like the person’s age, how much of their sentence they had already served, the nature of the crimes they were convicted of, and how likely they were to reoffend if released. One man who won compassionate release last year described the experience to BuzzFeed News as feeling like he’d “hit the lottery.”

To date, 238 people have died of COVID-19 while in federal custody, and nearly 45,000 federally incarcerated people have contracted the disease, according to publicly available statistics from the Federal Bureau of Prisons (BOP). There are more than 153,000 people currently in federal prison facilities; of those, approximately 77,000 (about 50%) are fully vaccinated.

The new data from the US Sentencing Commission shows how outcomes varied even within a single state. There were 497 compassionate release petitions filed in the Southern District of Florida, the most of any district nationwide; 100 of those were granted (roughly 20%). Just to the north, in the Middle District of Florida, 430 petitions were filed, the third-largest cluster in the country; just 28 of those requests were granted (making up 6.5%). In the Northern District of Florida, fewer petitions were filed overall — there were 98 total requests — but an even larger proportion, more than 32%, were granted.

North Carolina was another state where districts saw a similar number of compassionate release petitions come in with very different results. In the Western District of North Carolina, judges granted 2.1% of requests — 5 out of 241 — while in the Eastern District of North Carolina, 25.9% of requests — 55 out of 212 — were granted.

Compassionate release experts said the data as a whole illustrated the varying experiences incarcerated people had trying to secure compassionate release during the pandemic. But they also warned not to read too much into the specific percentages attached to a particular district to understand the situation on the ground. Judges each have their own approaches to postsentencing issues, and one district may be bound by different appeals court precedents than another. Outcomes can also depend on which prison facility a defendant sentenced in a particular court is more likely to be assigned to, and just how badly that facility had been hit by COVID-19.

Federal public defender offices in each district may have different approaches to pursuing these petitions for their clients, which can lead to different results in court, said Douglas Berman, a professor at Ohio State University's Michael E. Moritz College of Law. Berman said he hoped to see more data points from the Sentencing Commission in the future; he’d previously lamented in a blog he runs about sentencing issues that the “bare bones” report didn’t include information about demographics or details about the underlying criminal cases.

But Berman said the Sentencing Commission’s data broadly showed that judges, like the rest of the country, had different opinions about how much of a novel health risk COVID-19 posed.

“Just like COVID created uncertainty in every other part of our world, I think judges had just an incredible range of different reactions to how COVID should influence their new discretion here,” Berman said. “Progressive judges … viewed COVID as a much more kind of existential threat to the lives of prisoners than people who politically and socially were in communities where it’s like, ‘Eh, maybe it’s like a bad flu, but we don’t let prisoners out because they get a bad flu.’”

Before the First Step Act, people in federal custody couldn’t file compassionate release petitions in court on their own; only the BOP could make a request, and it rarely did so. Under the new law, incarcerated people still have to file a request with the BOP first and then can apply to a judge if that request is denied or they don’t get a response within 30 days. The Marshall Project reported that the BOP recently submitted data to Congress showing that just 36 requests were granted out of more than 31,000 during the pandemic. The report also noted that prison officials released more than 23,700 people to home confinement, which means they could have to return to custody later.

Maria Morris, a senior staff attorney with the ACLU’s National Prison Project, said that the Sentencing Commission’s latest release included other data points that spoke to the low level of success people continued to have seeking compassionate release with the BOP before going to court. Of the more than 2,500 petitions that judges granted in 2020, just 17 were submitted by BOP, which means the rest were filed by incarcerated people whose requests were either denied or never received a response from prison officials.

“What [the data] shows is that almost all of the cases that courts have found to be appropriate for compassionate release, in the Bureau of Prisons they said no,” Morris said.

A BOP spokesperson did not immediately return a request for comment.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.