[Pnews] Thousands of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were Denied.

Prisoner News ppnews at freedomarchives.org
Wed Oct 7 10:47:59 EDT 2020


https://www.themarshallproject.org/2020/10/07/thousands-of-sick-federal-prisoners-sought-compassionate-release-98-percent-were-denied?utm_medium=email&utm_campaign=newsletter&utm_source=opening-statement&utm_term=newsletter-20201007-2184
Thousands
of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were
Denied. October 7, 2020 -  By Keri Blakinger
<http://www.themarshallproject.org/staff/keri-blakinger> and Joseph Neff
<http://www.themarshallproject.org/staff/joseph-neff>
------------------------------

Even before the coronavirus pandemic hit, Marie Neba feared dying in
federal prison. The 56-year-old had stage 4 cancer—and three children
waiting for her at home. “Right now, I can barely walk around because of
generalized body pain and feet numbness,” she wrote
<https://www.courtlistener.com/recap/gov.uscourts.txsd.1310442/gov.uscourts.txsd.1310442.350.0.pdf>,
as she struggled through chemotherapy earlier this year. “The way things
are going regarding my treatments here at Carswell can lead me to my
grave.”

But last year when she tried to get a rare compassionate release from
Carswell medical prison in North Texas, the warden denied her request. When
COVID-19 hit, she tried again with a fresh request on March 30—and this
time the warden ignored her altogether.

In total, 349 women, about a quarter of the prison’s inmates, asked for
compassionate release during the first three months of the pandemic. The
warden denied or failed to respond to 346 of them, including Neba, who was
in prison for Medicare fraud—even though federal guidelines allow
compassionate release for terminally ill prisoners if they do not pose a
danger to the community. In the months that followed, more than 500 women
at Carswell fell ill with COVID-19 and six died. Neba was one of them.

Data recently obtained by The Marshall Project
<https://www.themarshallproject.org/documents/7217918-Reduction-in-Sentence-Requests-March-Through-May>
underscores what attorneys, advocates and experts have long suspected: As
the pandemic ramped up, federal prison wardens denied or ignored more than
98 percent of compassionate release requests, including many from medically
vulnerable prisoners like Neba. Wardens are the first line of review;
ultimately, compassionate release petitions must be approved by a judge.
Though the Bureau of Prisons has previously posted information about the
number of people let out on compassionate release, it wasn’t clear until
now just how many prisoners applied for it or how frequently wardens denied
these requests despite widespread calls to reduce the prison population in
the face of the pandemic.

Of the 10,940 federal prisoners who applied for compassionate release from
March through May, wardens approved 156. Some wardens, including those at
Seagoville in Texas and Oakdale in Louisiana, did not respond to any
request in that time frame, according to the data, while others responded
only to deny them all.

Higher-ups in Washington, D.C., reviewed 84 of the warden approvals and
overturned all but 11. Time and again, the only way prisoners were able to
win compassionate release was to take the bureau to court to fight the
wardens' denials.

For dozens of people stuck behind bars, the virus has proved fatal; so far,
134 federal prisoners have died of COVID-19, and more than 15,800 have
fallen ill. A statement from the Bureau of Prisons did not address specific
questions, including why some wardens failed to respond to release
requests. The wardens referred questions to the bureau.

Agency officials declined to comment on Neba’s case or her death.“We do not
comment on a specific inmate's conditions of confinement,” spokesman Justin
Long wrote in an email. “However, we can share that the BOP has continued
to process compassionate release requests as directed by the First Step Act
and agency policy.”
‘They said prison was going to be safer’

There are currently two main ways to get out of federal prison early. One
is known as home confinement, when prisoners are allowed to finish their
sentences at home or in halfway houses. They’re still considered in
custody, and the decision to let them go is entirely up to the Bureau of
Prisons, with no legal recourse in the courts. At the start of the
pandemic, a federal coronavirus relief bill expanded
<https://www.fd.org/sites/default/files/covid19/caresact_home_confinement_0.pdf>
the eligibility criteria, and the bureau has since sent more than 7,700
prisoners <https://www.bop.gov/coronavirus/index.jsp> to home confinement,
the equivalent of 4.6 percent of the prison population at the start of the
pandemic.

The other way to get out of prison early is compassionate release, in which
a judge agrees to reduce a prisoner’s sentence to time served. But first,
the prisoner must ask the warden for approval. After a warden denies the
request or 30 days pass with no response, the prisoner can take the case to
court and ask for a judge to approve it. So far, more than 1,600 people
have been let out on compassionate release since the start of the
pandemic—many of them despite the bureau’s best efforts to thwart them.

“Initially, they just opposed them all,” said Kevin Ring, president of the
prisoner advocacy group FAMM. “They thought COVID-19 was no reason to let
people out. They said prison was going to be safer.”

The Bureau of Prisons seems to have decided to rely on home
confinement—where the bureau retains control over the person—rather than
compassionate release, which reduces the sentence to zero, Ring said.

“They think their job is to keep people in prison, not to let people out,"
he said. “Jailers gonna jail.”

Officials were slow to turn to home confinement
<https://www.themarshallproject.org/2020/04/25/few-federal-prisoners-released-under-covid-19-emergency-policies>,
which didn’t ramp up until May, and were resistant to compassionate release
even as the virus spread through the prison system and prisoners began
filing lawsuits over the bureau’s refusal to send people home.

At Elkton, an early hot spot in Ohio where nine prisoners died
<https://www.themarshallproject.org/2020/06/18/i-begged-them-to-let-me-die-how-federal-prisons-became-coronavirus-death-traps>
of COVID-19 and more than 900 got sick beginning in March, the warden
denied 866 out of 867 requests for compassionate release between March 1
and May 31.

In California, the prison at Terminal Island became the site of a major
outbreak, with 694 prisoners testing positive by the end of May. But the
warden only approved five of the 256 compassionate release requests filed
by that time.

At Butner, a four-prison complex in North Carolina
<https://www.newsobserver.com/news/coronavirus/article244131227.html> where
25 prisoners and one correctional officer died in May and June, officials
approved 29 of 524 requests by the end of May.

At some prisons, the low number of requests raised questions about the
bureau’s recordkeeping. For example, at the Oakdale complex, an early hot
spot
<https://www.themarshallproject.org/2020/04/03/coronavirus-ended-his-shot-at-a-second-chance>
in Louisiana where eight prisoners have died, officials reported just 95
compassionate release applications by the end of May out of a population of
more than 1,700. The warden took action on none of them. At the same time,
the prison racked up 191 positive cases.

Likewise at Forrest City
<https://www.themarshallproject.org/2020/07/29/will-the-reckoning-over-racist-names-include-these-prisons>,
a two-prison complex in Arkansas where more than 700 men fell ill,
officials reported only three applications by the end of May. All three
were approved.

For more than a dozen institutions, including all 11 of the privately run
federal prisons, the bureau listed no compassionate release requests at
all.

“The numbers seem incorrect,” said Somil Trivedi, a senior staff attorney
with the American Civil Liberties Union, who has helped coordinate lawsuits
against federal prisons. “I just don’t feel like they’re counting them all.
This has to be an undercount because of the informal nature of the process.”
A fight for freedom

>From the Carswell prison, Marie Neba wrote letters to U.S. District Court
Judge Andrew Hanen complaining about poor medical care and her worsening
health as the pandemic continued. She worried who would support her
21-year-old daughter in caring for her 9-year-old twin boys if she died in
prison. Her husband, who was indicted in the same Medicare fraud case, fled
the country for their native Cameroon to avoid trial.

>From the Carswell prison, Marie Neba wrote letters to U.S. District Court
Judge Andrew Hanen complaining about poor medical care and her worsening
health as the pandemic continued. Federal Court Filings

>From the Carswell prison, Marie Neba wrote letters to U.S. District Court
Judge Andrew Hanen complaining about poor medical care and her worsening
health as the pandemic continued. Federal Court Filings

>From the Carswell prison, Marie Neba wrote letters to U.S. District Court
Judge Andrew Hanen complaining about poor medical care and her worsening
health as the pandemic continued. Federal Court Filings

Federal guidelines <https://guidelines.ussc.gov/gl/%C2%A71B1.13> say that
terminal illness, including metastatic cancer, is grounds for compassionate
release. But after the Carswell warden ignored Neba’s request and she took
her plea to court in April, federal prosecutors fought it aggressively,
saying she didn’t deserve a 70-year reduction in her 75-year sentence. They
argued, despite
<https://www.themarshallproject.org/2020/06/18/i-begged-them-to-let-me-die-how-federal-prisons-became-coronavirus-death-traps>
widespread
<https://www.newsobserver.com/news/coronavirus/article244131227.html> reports
to
<https://www.themarshallproject.org/2020/04/10/federal-prison-factories-kept-running-as-coronavirus-spread>
the
contrary
<https://www.themarshallproject.org/2020/04/03/federal-prisons-agency-put-staff-in-harm-s-way-of-coronavirus>,
that the Bureau of Prisons was doing its best to limit the spread of
disease behind bars.

In April, government lawyers claimed Neba’s health wasn’t really
deteriorating. As evidence of that, prosecutor Catherine Wagner produced a
video showing Neba walking on a treadmill and using small weights in the
medical center gym, pointing out that she was well enough to be “sweating
and walking unassisted.”

Neba’s lawyer said she was only following her doctor’s orders.

“He told her to exercise and eat right,” Zachary Newland said. Making sure
she took care of herself, Newland hoped, would keep her alive and free of
COVID-19 until she could come home.

Wagner and Department of Justice officials declined to comment.
Federal officials push back against releases

The bureau took nearly three months to respond to The Marshall Project’s
request for data on applications for compassionate release and how wardens
responded, so the information that the bureau produced only goes through
the end of May.
<https://www.themarshallproject.org/support-us?via=house-ad>

But more people won compassionate release in recent months than at the
start of the pandemic. The Marshall Project’s tracking of publicly posted
data shows that release numbers grew slowly in April, May and June before
nearly doubling in August, when close to 500 people were freed. But those
figures dropped in September, and attorneys and experts say that prison
officials are still denying releases and that prosecutors are typically
opposing the requests in court.

One recent release the bureau opposed was that of Juan Alberto Fernandez,
whose diabetes and obesity led to end-stage renal failure, which qualifies
for compassionate release under the guidelines. He was serving time on a
meth charge, and the warden of FCI Phoenix gave him a rare
<https://drive.google.com/file/d/1DLFU9qK_H0IUpmurc2FMl7smSsJtJimQ/view?usp=sharing>
release recommendation in July. But in August, bureau attorneys at the
central office in Washington overturned the recommendation
<https://drive.google.com/file/d/1LJfWkSvbATWlp1UmIuIfYn0IhabJ8qWF/view?usp=sharing>
because they said Fernandez could take care of his daily needs such as
“bathing; dressing; grooming; feeding; transfers; ambulating; toileting.”
Ultimately, a federal judge granted him compassionate release in September.

Another recent case in which both the bureau and prosecutors opposed
release was that of Jordan Jucutan, a former Army Reserve recruiter
sentenced to 28 months in prison for claiming bonuses for soldiers he
didn’t really recruit. He was obese, asthmatic and needed two inhalers, but
prosecutors claimed in court that he was “actually much safer” behind bars
than he would be if he were released, because his home county—Thurston
County in Washington—had more coronavirus cases than the prison did.

A federal judge found that argument unpersuasive: “It makes little sense to
compare a prison in Oregon with a whole county in another state,” Judge
Ramona Manglona wrote, before approving Jucutan’s release
<https://www.courtlistener.com/recap/gov.uscourts.nmid.5320/gov.uscourts.nmid.5320.170.0.pdf>
from FCI Sheridan in September.

Even in the rare instances in which prison officials agree that someone
deserves compassionate release, advocates say, they’re still not initiating
the process; instead, it’s up to the prisoners to do that themselves.

“We are not aware of a single BOP-initiated motion for compassionate
release based on heightened risk of severe illness from COVID-19
infection,“ said Davina Chen, a senior federal defender in Los Angeles.
Instead, the 1,600-plus prisoners granted compassionate release this year
applied with the help of lawyers; a few filed requests in court on their
own. Defense lawyers have a word to describe bureau-initiated compassionate
release cases: “unicorns.”
Final moments

After months of warning prison officials that she was high-risk, Marie Neba
tested positive for the coronavirus in July. By August, prison medical
staff thought she had recovered. But then, she developed shortness of
breath. She was sent to a hospital in Fort Worth, where she was shackled to
her bed and told that she still had COVID-19.

There, a nurse made a video call on FaceTime to show Neba to her
21-year-old daughter, Claudel Tilong, whom she hadn’t seen since March,
when the federal prison system cut off visits due to the pandemic. As
Tilong struggled to recognize her dying mother, now a frail woman with
ashen skin and vacant eyes, a correctional officer in the room interrupted
and ended the call. Tilong recalled the words: “It’s not allowed.”

With his client in worsening condition, Neba’s lawyer again begged federal
prosecutors to stop opposing her release.

“This is not about Neba anymore,” Newland wrote in an Aug. 17 email. “She's
dying and cannot speak to even make peace with her children if she wanted
to do so.”

Still, they refused. So on Aug. 26, Newland begged the judge to end Neba’s
sentence. Hours after filing that request, he learned it was too late.

Neba had died a day earlier. A nurse had called Tilong on FaceTime and,
sitting in a parked car, Tilong and her 9-year-old twin brothers watched
their comatose mother take her last breaths with ventilator tubes in her
nose.

One son said goodbye; the other asked his mom to say hi to Moses in heaven.
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