Attorney General William P. Barr in late March ordered the Bureau of Prisons to allow more inmates to finish their sentences at home as a way to help address coronavirus challenges in close quarters. But weeks after his statement, the department reset, then reset again, the bar prisoners must reach to be considered for release to home detention.
“Some families had already showed up to pick up their loved ones. Others were days away from doing it,” said Kevin Ring, executive director of the advocacy group Families Against Mandatory Minimums. “To have that taken away, obviously, is devastating. Every day, they go at 3 o’clock, they look at the Bureau of Prisons website for the update to see how many more cases there are at their loved ones’ facilities. The sense of urgency is through the roof.”
The flip-flopping at the federal level since early April stems from the question of whether prisoners must have served at least half of their sentences to be considered for early release to home detention: First they needed to have met that mark, then they didn’t, then the requirement was apparently reinstated, inmates were told earlier this week.
Then, on Wednesday, a new Bureau of Prisons memo indicated that prisoners who had not hit the halfway point were still eligible. In addition, a Justice Department spokesman said the agency now would try to expedite the cases of the inmates who had been caught in limbo amid the back-and-forth changes, moving them to the front of the line for home confinement.
The handling of early federal releases contrasts sharply with some local and state actions that have released thousands of inmates deemed to be the most vulnerable or the least dangerous amid escalating outbreaks of the coronavirus.
Two dozen federal inmates have died of covid-19 since March and more than 600 inmates and 350 staffers have tested positive for the coronavirus, according to the Bureau of Prisons, which houses about 174,000 inmates across the federal prison system.
The bureau’s website says it has sent more than 1,500 inmates home early since March 26 at Barr’s direction, adding that “this is a tremendous lift that was accomplished through the marshaling of all of BOP’s resources.”
It is not clear where those inmates were transferred from, how they were determined to be eligible or whether some already might have been scheduled for home confinement anyway. The agency declined to provide more details.
It is unclear how widespread testing is at bureau facilities. The bureau said 11 institutions now have rapid test instruments from medical-device maker Abbott, and three also are working with local health departments or the Centers for Disease Control and Prevention to test inmates, including those who are asymptomatic.
The bureau did not respond to questions on the shifting guidance, and the Justice Department declined to elaborate beyond its public statements.
The department’s response to the spread of coronavirus at Bureau of Prisons facilities has moved in fits and starts. Initially, the department seemed reluctant to use early release as a mechanism to prevent outbreaks, instead restricting visitors and inmate movements. That was in keeping with Barr’s conservative approach on criminal justice issues.
But as confirmed exposures climbed, Barr relented.
In his original March 26 directive, Barr urged making home-confinement releases more accessible. He followed up on April 3 to significantly expand the pool of those who would be eligible, using a provision of the coronavirus relief legislation that allowed him to declare an emergency and waive the normal requirements about who can finish out their prison sentences at home. He cited three in particular as a priority for evaluating early releases — low-security federal prisons in Oakdale, La., and Danbury, Conn., and the Elkton prison in Lisbon, Ohio.
Since then, the criteria for weighing an inmate’s time-served factor has fluctuated.
In the immediate wake of Barr’s announcement, the Bureau of Prisons decided inmates needed to have passed the halfway mark on their sentences to be considered, prosecutors wrote in response to a lawsuit over conditions in the Oakdale prison, where seven inmates have died of covid-19. But soon after, on April 9, that factor was removed from the list of eligibility criteria, the prosecutors wrote.
The bureau turned toward the more demanding direction Monday, as stated in a court filing in the case of Lewis Stahl, 64, formerly the owner of a medical technology company in New York. He has served less than a quarter of a 30-month sentence for tax evasion at a low-security prison in Miami.
U.S. District Judge Ronnie Abrams had urged the bureau to consider releasing Stahl, noting that his heart condition and high blood pressure “very well may put him at a heightened risk of suffering serious complications from the virus if contracted.”
But new guidelines got in the way.
“The Bureau of Prisons (‘BOP’) advised the Government this afternoon that the Department of Justice (‘DOJ’) has just issued new guidance to the BOP requiring that an inmate serve at least fifty percent of his or her sentence in order to be eligible for placement on home confinement,” Assistant U.S. Attorney Olga I. Zverovich wrote in her Monday filing.
In the new memo dated Wednesday, the bureau said that the amount of time served would merely count as a “priority factor” in decisions. Prosecutors added late Thursday that Stahl was now approved to go home Friday.
Justice Department spokesman Matt Lloyd said the Bureau of Prisons “intends to expeditiously transfer all inmates to home confinement who were previously referred for home confinement provided that such transfers are not forbidden by statute or the criteria expressly adopted in the Attorney General’s Memoranda.” A Justice Department official said the directive affects about 200 inmates across the system.
Exactly who is in that pool was not immediately clear. In one high-profile instance, prosecutors told a federal court that Dean Skelos, the Republican former New York State Senate majority leader who had been serving a four-year-and-three-month prison term, would be furloughed from prison — only to reverse that this week because he had not served 50 percent of his sentence. On Thursday — after the Justice Department had said those cleared for release would be transferred to home confinement — prosecutors wrote that the Bureau of Prisons had “not yet resolved” whether Skelos would be let out.
The 50 percent rule also would seem to apply to Michael Cohen, President Trump’s former lawyer. Cohen’s attorney said this week that he was cleared to be released to home confinement. Cohen had reported to prison on May 6 to begin serving a three-year sentence for financial crimes and lying to Congress; he had previously expected release in November 2021. As of early Friday, though, Cohen’s attorney said, he had not been told of any change in his client’s status.
Inmates in at least six prisons were affected by the change in guidance, according to court records and interviews with lawyers, family members, advocates and prisoners.
At the low-security prison in Oakdale that Barr had mentioned because of its “significant levels of infection” and multiple deaths in recent weeks, 51-year-old Donald Cain is serving a five-year sentence for “causing substantial emotional distress” in phone conversations with his wife, according to court records. His daughter recently sent by overnight mail a request for final approval to pick up her father in the coming days, at the instruction of his prison caseworker.
Everything changed earlier this week, Cain wrote in a federal court affidavit filed Wednesday, when the same caseworker told him “the guidelines had changed and that I have served only 39% of my sentence.”
“He’s literally three months from qualifying, and now he has to stay,” said Somil Trivedi, an attorney with the American Civil Liberties Union who has filed a class-action lawsuit against the Oakdale prison seeking the release of more inmates amid the coronavirus pandemic.
At a minimum-security dormitory-style prison in New Mexico, 67-year-old Thomas Balsiger said he was told last week that he would soon be sent to home confinement. Balsiger remembers signing release papers, and his wife received a call from a prison caseworker to verify that the home she lived in had a landline phone.
On Monday, he wrote to his daughter, Angela Caldwell, that “we were each called in and told that new guidelines . . . now requires 50% of the sentence served for anyone to be released.”
Balsiger, who was sentenced to 10 years in prison for a widespread grocery-store coupon fraud scheme, is 31/2 years in and has advanced coronary artery disease. Balsiger was recently placed in solitary confinement for reasons that are unclear, his daughter said, and so he is unreachable.
At the Oakdale and Elkton prisons, where a total of 13 inmates have died, about a dozen inmates have been approved for home confinement out of the thousands there, the Justice Department told a judge in federal court filings last week.
Six of those approvals are for inmates at Elkton. That is a small dent in a facility where about 2,000 live in dormitory-style units, said David Carey, an attorney with the ACLU in Ohio who has filed a class-action lawsuit on behalf of inmates there. “Six is equivalent to the number of people who have died of coronavirus at Elkton,” Carey pointed out.
The Bureau of Prisons website says 51 inmates and 49 staff members at Elkton have tested positive for the virus, but in an April 18 court filing, prosecutors said the number of “suspected” cases at the facility was about twice that.
On Wednesday, U.S. District Judge James Gwin wrote that the Elkton staff was fighting “a losing battle.” He noted that the prison’s dormitory-style design makes social distancing among inmates impossible and that less than 100 tests had been provided to the prison as of late last week.
He ordered the Bureau of Prisons to quickly provide a list of inmates who fit the CDC guidelines as being at “higher risk” for complications from the virus, including those older than 65 and those with underlying medical conditions such as heart disease or diabetes.
Those prisoners must be transferred out of Elkton “through any means,” including home confinement, Gwin said. If any were deemed ineligible to go home, they would have to go to another facility “where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished.”
Joseph Mayle, a Bureau of Prisons union official who works at Elkton, told The Washington Post on Thursday that 25 people from the facility are hospitalized and 10 are on a ventilator. The bureau did not respond to a request for comment on those figures.