Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic

By Casey Tolan, CNN

The assessment was dire: Horacio Estrada-Elias had “less than 18 months” left to live, his prison doctor wrote last year in a document submitted with the 90-year-old inmate’s request for compassionate release.

Estrada-Elias, who is serving a life sentence in federal prison for a nonviolent marijuana trafficking crime, suffers from congestive heart failure, atrial fibrillation and chronic kidney disease, another doctor who reviewed his records wrote. His prison warden recommended last year that he be released, noting his spotless disciplinary record.

But the federal judge who sentenced Estrada-Elias a decade and a half ago was not convinced. Judge Danny Reeves denied Estrada-Elias’ request for compassionate release in July, writing that the large volumes of marijuana the defendant sold reflected “a flagrant disrespect for the law that can only be reflected in an equally severe sentence.”

Estrada-Elias isn’t alone: Reeves has denied compassionate release motions from at least 90 inmates since the beginning of the coronavirus pandemic, a CNN review of court records found. In Reeves’ district, the Eastern District of Kentucky, judges granted about 6% of compassionate release motions in 2020 and the first half of 2021, according to data released by the US Sentencing Commission this week. In some judicial districts, the approval rate was even lower.

But elsewhere in the country, compassionate release is a different story: Nearly 50% of compassionate release motions decided by the federal court in Massachusetts and more than 60% decided by the court in Oregon were approved during the same time period — including some for inmates with far less serious medical conditions than Estrada-Elias.

Federal judges in all of these districts are applying the same laws, which allow compassionate release in “extraordinary and compelling” cases. But those wide disparities show that whether defendants get released early during the pandemic has had almost as much to do with which courts are hearing their motion as it does with the facts of their cases, legal advocates and researchers say.

The compassionate release process, expanded by Congress in a landmark 2018 criminal justice reform bill, has acted as a safety valve for the federal prison system during the pandemic, with more than 3,600 inmates being released in 2020 and the first half of 2021. But it has given judges broad discretion to interpret which sentences should be reduced, leading to a national patchwork of jarringly different approval rates between federal courts.

The reasons behind the disparities have to do with variations in sentence length and legal representation for inmates, as well as differing approaches between more liberal and conservative judges, according to interviews with more than a dozen lawyers, advocates and experts studying compassionate release.

More broadly, the percentage of motions granted nationwide has fallen this year, as judges and Department of Justice lawyers have been pointing to inmates’ vaccination status as a reason to oppose their release.

“Judges are looking at the same law and policy but interpreting it differently,” said Hope Johnson, a researcher with the UCLA School of Law who’s studied compassionate release cases. “There’s an arbitrariness in the way these decisions are being made.”

‘Extraordinary and compelling reasons’

When Congress passed the First Step Act in 2018, Democrats and Republicans hailed it as a breakthrough for overturning excessive sentences.

Among other reforms — such as easing mandatory minimum sentences and requiring inmates to be housed in prisons closer to their families — the law allows any defendant to petition their judge for compassionate release if “extraordinary and compelling reasons” support a sentence reduction. Previously, only the government could make such a motion — and did so very rarely.

When the pandemic hit and Covid-19 began to spread through the prison system, lawyers turned to compassionate release as a key method to help medically vulnerable inmates get out. As petitions piled up on court dockets, judges were largely left to puzzle out what “extraordinary and compelling” means — a life-and-death decision for some inmates.

The law doesn’t define that standard, but it directs judges to consider factors associated with sentencing law as well as guidelines published by the US Sentencing Commission. All but one of the seats on the commission are currently vacant, and it hasn’t approved new compassionate release guidelines in years.

Some federal judges initially ruled in 2019 and 2020 that they were bound by the commission’s years-old guidelines, limiting the reasons inmates are eligible for release. But most appeals courts around the country have since rejected that idea, issuing rulings over the last year saying the guidance is just advisory in most cases.

Typically, inmates petitioning for compassionate release during the pandemic have argued their cases are extraordinary due to medical issues, coronavirus risk, age, family situations or excessive sentences. Often, they claim multiple reasons apply.

Overall, 17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted.

Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts. He said he would like the commission to pass a new standard urging judges to take “the pernicious effect of Covid” into account in deciding compassionate release cases.

“You need a national standard,” Breyer told CNN, adding that without one, “it creates a vacuum and it creates uncertainty, and most importantly it creates disparity.”

Some of the disparities between districts in compassionate release mirror variations in sentencing, with courts that tend to hand out longer sentences being less likely to grant release, experts say. In most cases, the same judges who handed down those original sentences are making decisions on early release.

“Certain districts are just much less sympathetic to criminal defendants than others,” said Beth Blackwood, a lawyer at the National Association of Criminal Defense Lawyers, which has referred hundreds of defendants to pro bono attorneys who help them with compassionate release motions. “Sentencing judges have always had a tremendous amount of discretion, and that cuts both ways for defendants.”

Judicial politics also seem to play a role. Georgetown Law researcher Victoria Finkle, who analyzed more than 4,000 compassionate release cases from March through October 2020, found that district judges appointed by Democratic presidents were more than twice as likely to approve release as judges appointed by Republican presidents. Researchers from the UCLA School of Law, who have also tracked compassionate release cases, said they found a similar trend.

Nationally, while the number of inmates who’ve won compassionate release has spiked during the pandemic, the percentage of compassionate release motions granted has decreased over time. Just over 40% of motions decided in March 2020 were approved, but that fell to less than 17% in December and about 11% in June 2021. The decline this year came as the number of new coronavirus cases behind bars receded and vaccines became widely available in the prison system.

Some of those who were denied compassionate release didn’t survive the pandemic.

Of the roughly 250 people who have died of coronavirus in federal prison, about 70 had applied for compassionate release before their death, according to research by University of Iowa law professor Alison Guernsey, who studies criminal justice issues and has represented inmates in compassionate release cases. Most were denied or had motions pending when they died, although three inmates had been granted compassionate release but had not yet been released when they died.

Some inmates get lawyers, others ‘left on their own’

Before they even rule on an inmate’s compassionate release motion, judges can make a decision that lawyers and advocates say can have a big impact on the outcome: whether to appoint a lawyer for the inmate.

Unlike the process in criminal cases, inmates who are requesting compassionate release have no right to a lawyer to help them with their motion. But in some courts, judges are assigning at least some prisoners who can’t afford legal counsel a public defender.

In the District of Oregon, Federal Public Defender Lisa Hay said her office or affiliated attorneys were appointed to represent inmates in most compassionate release cases over the last year and a half. Public defenders gathered inmates’ medical records, studied the growing body of case law about compassionate release, and worked with prosecutors and probation officers to advocate for their clients.

“It’s just very hard for somebody on their own to make the same compelling case and the legal arguments they need,” Hay said. “It’s been, obviously, a huge burden to have all of these cases come in that are on top of the ordinary caseload, but it is critical to help people who are otherwise facing potential death in prison.”

Their work seems to have had an impact: Nearly 65% of the 127 compassionate release motions heard by judges between January 2020 and June 2021 were approved — the second-highest rate for any federal court in the US, after the Puerto Rico District.

More generally, Hay said, the judges in her district are taking the coronavirus risks for inmates seriously. “Our judges have been acutely aware of the pandemic and the dangers that it poses for our residents in prisons, and have been willing to use their statutory authority to release people,” she said.

Judges are taking a very different approach in the Western District of Oklahoma, which includes Oklahoma City. Less than 4% of the 80 compassionate release motions heard in the district in 2020 and the first half of 2021 were granted — and the vast majority weren’t represented by a public defender.

Laura Deskin, an attorney at the federal public defender’s office there, said that while she and her colleagues would have liked to represent inmates requesting compassionate release, judges in the district declined to appoint them to do so. The defender’s office hasn’t submitted any compassionate release motions based on the coronavirus pandemic, she said.

Without the support of a public defender, inmates who can’t afford lawyers are “left on their own,” Deskin said.

“We would have taken them,” Deskin said. “I would like to think that if our office had been permitted to advocate for inmates, perhaps we could have convinced the judges to be more, dare I say, compassionate.”

The court clerk for the district, Carmelita Shinn, said that judges reviewed each compassionate release motion on an individual, case-by-case basis. Legal experts say that some judges are reluctant to appoint federal defenders to help with motions because many defense offices are already struggling with huge caseloads.

Other nonprofit groups such as the National Association of Criminal Defense Lawyers have taken up the slack in some districts, referring inmates to pro bono lawyers.

The difference between judges appointing attorneys or not can mean that they end up reviewing vastly different petitions.

In July, Wylema Wilson, a 66-year-old inmate serving a five-year sentence for conspiracy to distribute methamphetamine, sent her Oklahoma judge a handwritten letter petitioning for compassionate release. In careful penmanship on a lined piece of paper, she noted past coronavirus deaths at her prison, listed the medical conditions she was facing — including epilepsy, diabetes and heart disease — and wrote that she hoped for “a second chance at life, a life the way it should be clean and sober.”

Her judge didn’t appoint a public defender or other attorney to represent her, and denied the motion even though she had less than a year left on her sentence. A reduction would not “reflect the seriousness of defendant’s offense,” Judge Stephen Friot wrote.

Across the country, another drug convict in the Oregon District was more successful. Maycol Fuentes-Salinas, a 28-year-old serving a three-year sentence for possessing methamphetamine with intent to distribute, also sent his judge a handwritten petition for compassionate release. Writing in block capital letters, he said that the 23.5-hour daily lockdown in his prison during the pandemic had greatly exacerbated his depression, anxiety and post-traumatic stress disorder.

The same day he received the letter, a judge appointed the Oregon federal defenders’ office to represent Fuentes-Salinas, and a lawyer wrote him a new petition that included a supportive affidavit by a clinical psychologist and a psychiatrist and references to similar legal cases. The U.S. Attorney’s Office did not oppose the motion, and a judge approved his release in May, sending him to a re-entry center where he could receive treatment.

A Catch-22 on vaccinations

In a large majority of cases, however, federal prosecutors have argued against compassionate release. And in some cases, lawyers for the government are pointing to inmates’ vaccination status to argue to keep them behind bars.

That’s the case for both vaccinated and unvaccinated inmates. In a petition opposing the release of Estrada-Elias, the 90-year-old inmate, a Department of Justice lawyer noted that he had refused a Moderna coronavirus vaccination this summer.

“Unfortunate though it may be, Estrada-Elias’ continued vulnerability to COVID-19 infection is now a result of his own volitional choice,” the government wrote in its motion. The lawyer argued that whether his health conditions reach the level of extraordinary and compelling is “debatable” — despite the recommendation from the prison doctor and warden — and don’t outweigh the severity of his crime.

Across the country, another DOJ lawyer made the opposite vaccine argument about Maurice Watkins, who had petitioned for release in January after serving nearly 90% of a 21-year sentence for selling heroin. Watkins wrote that medical conditions such as high-blood pressure and obesity made him vulnerable to coronavirus.

By the time the government responded to Watkins’ petition in April, however, he had been “fully vaccinated against the Covid-19 virus with the Pfizer vaccine,” a federal prosecutor wrote, adding that “the risk of complications associated with any underlying health condition have been obviated.” A judge concurred, keeping Watkins in prison for the remainder of his sentence.

The Department of Justice has made similar arguments in dozens of other cases since vaccines became widely available in prisons earlier this year, according to a CNN review of court documents. That’s led to a Catch-22 facing federal inmates seeking compassionate release during the pandemic: In case after case, the government has pointed both to inmates receiving and rejecting a vaccination as a reason to keep them in prison.

In court filings last year, DOJ lawyers said the department’s policy was that any inmates with coronavirus risk factors identified by the Centers for Disease Control and Prevention — such as obesity, heart disease or diabetes — should be considered to have an extraordinary and compelling reason for sentence reduction. But that stance seems to have shifted with the arrival of vaccines.

Lawyers and advocates for inmates say they’re frustrated with the approach — especially considering President Joe Biden campaigned on reducing excessive prison sentences and making the criminal justice system fairer.

“The DOJ’s position now is either you’re vaccinated and you’re safe, or you should have gotten vaccinated and if not, you’re not deserving of compassionate release,” said Blackwood, the NACDL lawyer. “We’re seeing a near-blanket opposition to almost all of our cases.”

A DOJ spokesperson said in a statement that the government’s position on compassionate release cases “has consistently been informed by guidance from the CDC.” Each case is reviewed individually and there have been some cases in which the department didn’t oppose release for vaccinated inmates, the spokesperson said.

More than 65% of federal inmates have been fully vaccinated, according to a Bureau of Prisons spokesperson — a similar rate to the adult US population at large.

According to advocates, some inmates who are refusing a vaccine are distrustful of medical services in their prisons. And even vaccinated inmates with serious medical conditions are worried about the Delta variant.

In at least one recent case, an inmate died after contracting a breakthrough coronavirus case despite being vaccinated. Rasheem Hicks, 42, who was serving a six and a half-year sentence for cocaine and firearm possession, died late last month about two weeks after testing positive for Covid-19. The DOJ had cited his vaccination in its motion opposing Hicks’ request for compassionate release, even though he suffered from sickle cell disease, diabetes and chronic liver disease.

‘He will not recover’

Some of the longest sentences that judges are now reconsidering were imposed under mandatory minimum laws. Estrada-Elias was sentenced to life in April 2008 after pleading guilty to a conspiracy to traffic tens of thousands of pounds of marijuana into and around the United States. Reeves, his judge, was required to give him a life sentence because he had previous drug convictions.

The mandatory minimum law that applied in that case was taken off the books under a separate provision of the First Step Act in 2018. If Estrada-Elias hadn’t been subject to the mandatory minimum, the guideline for his sentence range would have been about 12 to 16 years, according to court documents.

In addition to the health problems documented by his prison doctor, Estrada-Elias, who has spent most of the last year and a half in hospitals and other medical facilities, suffered from a coronavirus infection late last year. “Mr. Estrada-Elias’ prognosis is poor,” his prison warden wrote in his recommendation for release last year, referring to his broader illnesses. “He has been diagnosed with an incurable, progressive illness in which he will not recover.”

Few inmates in the federal prison system are as old as the nonagenarian Estrada-Elias: Less than 3% of federal inmates are older than 65, according to statistics from the Bureau of Prisons. His case is extraordinary because of his health risks, and he hoped to “spend the remaining few months of his life with his family,” his pro bono lawyer wrote in the petition.

But in denying the motion for release, Judge Reeves noted that Estrada-Elias was convicted of drug trafficking when he was in his mid-70s. “He suggests that his frailty would preclude him from re-offending, but he made similar suggestions prior to being sentenced,” the judge wrote.

Pointing to the large quantities of marijuana Estrada-Elias pled guilty to trafficking, Reeves wrote that “it is hard to imagine that a defendant can commit a more serious non-violent offense,” and concluded that a life sentence is “the only sentence that would be appropriate and that would protect the public.”

A court staffer for Reeves, who was nominated to the bench in 2001 by former President George W. Bush and serves as the chief judge in his district, declined an interview request for him.

Mary Price, the general counsel of FAMM, a group that advocates for criminal justice reform, said that the denial of Estrada-Elias’ motion was an example of “the dark side” of judicial discretion.

“He is nearing the end of his life and as a society, we’ve recognized the sentence imposed on him no longer fits,” Price said. Estrada-Elias “is going to have to spend the rest of his life serving a sentence that we as a society have said is absolutely inappropriate.”

Estrada-Elias’ lawyer has appealed the denial. Meanwhile, his family members, who bought a medical bed and set up a spare room for him at his sister’s house in the hope that he’d be released, are waiting anxiously. Hearing that he was denied despite the doctors’ warnings was devastating, said Elizabeth Estrada, his daughter.

“He is suffering, and we’re suffering because we don’t understand it,” Estrada said. “I dread a phone call that something happened to my dad.”

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