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Introduction
You read that correctly. Two years into the pandemic, with tools like a compassionate release to home confinement available to prevent the spread of COVID-19 to vulnerable populations in federal prison, people are dying unnecessarily.
Discussion
Compassionate release opportunities existed before the First Step Act of 2018. However, the First Step Act changed how compassionate release works in the federal system, making it more widely available in compelling situations.
Eighteen months after the First Step Act passed, COVID-19 hit, and Congress asked the Federal Bureau of Prisons to review vulnerable prisoners for release to home confinement under the CARES Act, further expanding the availability of compassionate release.
This leaves us to wonder why vulnerable people in federal prisons who could have been on home confinement due to COVID-19 instead died in the custody of the BOP in recent weeks.
In fact, families and community members have been protesting outside Alderson Federal Prison Camp in recent weeks due to the unsafe health conditions and a sizeable COVID-19 outbreak at the facility.
Alderson FPC is an all-women’s minimum-security prison camp in West Virginia, known as “Camp Cupcake.” Credible reports have emerged that at least three women from Alderson FPC, who could have been home on compassionate release, recently died from COVID-19.
Most of the attention of late has been on the early release from prison of thousands if federal inmates under the earned time credit programs of the First Step Act, and rightfully so.
Whether through early release programs like the earned time credits program under the First Step Act or through compassionate release under the First Step Act or the CARES Act, it is always heartening to see people get a second chance and return to their communities. There are far too many non-violent first-time offenders sent to federal prisons for many years in the US.
Still, it is shocking to learn that several Alderson women and other prisoners have recently died due to COVID-19 because the BOP failed to use the compassionate release tool to reduce the spread of COVID-19.
Compassionate Release Under The First Step Act
The First Step Act of 2018,
- expanded compassionate release eligibility criteria; and
- ensured that people have the right to appeal directly to a court the BOP’s denial or neglect of a prisoner’s request for a compassionate release.
For compassionate release, a person must show an “extraordinary and compelling reason” for a sentence reduction or release from prison.
Who can grant a compassionate release from federal prison?
A compassionate release refers to a federal court’s power to reduce a person’s time in prison when a person in custody can show “extraordinary and compelling” reasons why they need the release. Compassionate release amounts to a sentence reduction. The BOP can also grant a compassionate release.
Terminal medical conditions are generally considered “extraordinary and compelling.” A terminal medical condition means that the person:
- has a terminal, incurable disease with a life expectancy of 18 months; or
- has a disease or condition with an end-of-life trajectory, meaning that the disease or condition will lead to death (though a specific prediction of time left to live is not necessary).
A debilitating medical condition is also a reason that generally qualifies as “extraordinary and compelling.” This reason applies to people with an incurable, progressive illness or a debilitating injury with no hope of recovery.
Thus, for example, the BOP will consider a compassionate release if a person is completely disabled and cannot self-care, totally confined to a bed or chair. BOp will also consider a compassionate release for people with limited ability to self-care, confined to bed or chair for 50 percent of waking hours.
In addition, a compassionate release is appropriate in cases where “the prisoner’s ability to provide self-care in prison is substantially diminished,” and recovery is unlikely because of the person’s:
- “serious physical or medical condition; ”
- “serious functional or cognitive impairment;” or
- “deteriorating physical or mental health due to age.”
Compassionate release provisions also cover the situation of elderly prisoners (with medical conditions) and other elderly prisoners.
Elderly prisoners with medical conditions include:
- those 65 years or older;
- suffering from chronic or serious medical conditions due to age;
- with deteriorating physical or mental health that substantially diminishes their ability to function in prison;
- the conventional treatment promises no substantial improvement;
- and have served at least 50% of their sentence.
Other elderly prisoners who may qualify for compassionate release are those
- 65 years or more;
- having served the greater of 10 years of 75 percent of their sentence.
Finally, another reason can be family circumstances or death or incapacitation of the family member or caregiver of the prisoner’s minor children. BOP requires that to be eligible, the prisoner must be the only family member capable of caring for the minor children.
The First Step Act Gives People the Right to Go to Court
The most significant change to compassionate release in the First Step Act is that prisoners now can file a motion for compassionate release once they have tried and failed to convince the BOP to do so.
Before the First Step Act, prisoners could not seek court intervention directly even when the BOP denied compassionate release for the wrong reasons. For example, the BOP is not supposed to evaluate whether a person is deserving of compassionate release–only whether they meet the criteria. But without a right to appeal the BOP’s decision, prisoners were entirely at the mercy of the BOP.
Now, people may file a motion in court as soon as 30 days after the Warden receives their request for compassionate release.
Significantly, since COVID-19, under the CARES Act, prisoners can ask the Warden for compassionate release based on their health risks due to COVID-19. If the Warden denies the request or fails to take action, a person can file a motion immediately with the federal court.
Note: A compassionate release refers to the court’s ability to reduce a sentence when a person in custody can show “extraordinary and compelling” reasons why they need the release. Compassionate release amounts to a sentence reduction.
As we can see from all the above, robust provisions and mechanisms allow for the compassionate release of federal prisoners under extraordinary and compelling circumstances.
Regrettably, people in federal prison who qualify to go to home confinement with family continue to die due to COVID-19.
CARES Act, Compassionate Release & COVID-19
Even against the backdrop of a BOP that has always been miserly when it comes to the compassionate release of prisoners, it is still shocking to hear insider reports of at least three recent deaths due to COVID-19 at Alderson federal prison camp in West Virginia.
These types of deaths were precisely what the First Step Act and the CARES Act sought to prevent.
We have had numerous reports of deaths across federal prisons since COVID-19 began. The more recent deaths — based on overcrowding and neglect — are much harder to process two years into the pandemic. Friends and families of women housed at Alderson FPC sounded the alarm before anyone had died that the conditions for the women were far from safe.
The CARES Act explicitly allows the BOP to transfer to home confinement people with underlying COVID-19 risk factors, such as age, diabetes, heart issues, obesity, pre-diagnosis of cancer, etc. The goal is to prevent people in federal prison from becoming a statistic of the pandemic.
The recent deaths appear entirely preventable. A prison sentence became a death sentence for these recent victims and their families.
Recent BOP Stats & Recent Deaths
According to the BOP’s records, as of December 22, 2021, 41,736 inmates and 8,686 staff had COVID-19 and recovered. However, 273 federal inmates and 7 BOP staff members died due to COVID-19. These numbers have changed for the worse throughout the last month, as COVID-19 continues to spread in prisons across the country.
Alderson FPC was the number one BOP facility with outbreaks last month. Dozens of women meeting the criteria to get a transfer to home confinement have requested transfers. It is mind-boggling that the Alderson Warden and the BOP — with the tool of compassionate release under the CARES Act — did not move as aggressively as possible to prevent the spread and eventual death of the women in their custody.
Alderson FPC currently appears on the BOP website as being at Level 3 Operations, meaning that one of three factors apply:
1) the medical isolation rate at the prison is greater than 7% of the population;
2) the facility vaccination rater is less than 50% or
3) the community transmission rate is greater than 100 per 100,000 over the last 7 days.
In December, 108 women of the 665 prisoners at Alderson FPC had active COVID cases, and 43 had recently recovered. Over 20% of the population had COVID-19.
To top it off, Alderson was reportedly experiencing staffing shortages due to COVID-19. Staff shortages make it more challenging to keep the women safe and provide sick people with adequate care. Even the fact that they would have less access to commissary items is a problem during a health crisis. BOP expects them to purchase at the commissary essential over-the-counter pain medication, cough syrup, and other medications that help people get through the symptoms of COVID-19.
Families of the women at Alderson FPC report that there are dozens of women who could have been transferred to CARES Act home confinement but are instead languishing there as the pandemic spreads.
In December, at least twelve women were in the local hospital, and others remained in a quarantine unit on oxygen.
The level of severe illness at Alderson FPC was bound to overtax the staff at the local hospital. Alderson FPC is in a small town in West Virginia with only about 1,100 residents. The nearest major hospital is 30 miles away. The prison camp at Alderson has limited medical care on-site, relying on local doctors and hospitals when inmates get sick. Local reporters explain that resources meant to serve the community can be taxed when there are super-spreader events, like the ongoing conditions at Alderson FPC.
How Did We Get Here?
The CARES Act envisions that prisoners should not even have to apply for home confinement, as prison staff must identify and release candidates proactively.
Still, most prisoners apply under the compassionate release process of the First Step Act because they do not trust the BOP or prison staff to look out for their best interests.
Inmates make their requests through an administrative process known as the BP-8, 9, 10, and 11 (appeals from the case manager up to BOP Central Office in Washington DC). But this process can take many months to complete, mainly because the BOP continues to experience the same staff shortages that have plagued BOP for decades.
Moreover, the women at Alderson FPC have told reporters and lawyers that there is no way to know who is in charge of making decisions on their requests for home confinement. Their requests often come back with denials, with no explanation for the reasons. Staff often loses the paperwork as well.
In the rare case where the denial came back with an explanation from the Warden at Alderson FPC, the Warden relied on improper factors to deny the request. She acknowledged that the woman qualified because she had served the appropriate amount of her sentence, had underlying conditions that make her susceptible to COVID, and had an excellent disciplinary record.
But the Warden further revealed, vaguely, that she denied the woman transfer to home confinement because certain “details” about her crime made her ineligible.
That is disheartening.
While the BOP has wide discretion to approve or deny home confinement, a person’s qualifications for CARES Act are not supposed to be influenced by the Warden’s feelings about the underlying crime. The CARES Act is about the health and safety of all prisoners.
The Alderson Warden is not alone. Many other Wardens across the federal system routinely deny people who qualify the chance to get out of harm’s way based on personal moral judgments. That is wrong. These decisions delay a vulnerable person’s transfer, as they have to appeal the denial to a federal judge, another step that takes time.
*Pro-Tip: The team at Prison Professors helps clients who need to appeal a Warden’s compassionate release denial through the process.
CONCLUSION
Compassionate release procedures are on the books for a reason, and the BOP and the federal prisons must wholeheartedly adopt the CARES Act home confinement policies. The policy allows the BOP to send qualified people to a halfway house or home confinement to prevent the continued spread of COVID-19, which can lead to death in vulnerable populations.
People with non-violent offenses with minimal custody scores can be kept safer and have a fighting chance of beating COVID-19 at a halfway house or on home confinement.
