He was turned down.
“I don’t dispute Mr. Bess’s medical condition, I don’t dispute his vulnerabilities,” said Assistant U.S. Attorney Laura Higgins, according to a transcript of the April 21 hearing.
But, she argued, the court couldn’t step in to grant a release until at least 30 days after the request to a warden — even if the answer already had come back “no.”
The courtroom exchange is emblematic of the maze some federal prison inmates must navigate while seeking protection from the coronavirus.
For inmates like Bess, the 30-day wait has become a holdup around the country. Compassionate releases end prison sentences early for reasons such as sickness, old age or other reasons deemed “extraordinary and compelling.”
For some other inmates hoping for release to home confinement, shifting eligibility rules have blocked their path. Home confinement requires they finish their sentence but at home under close monitoring.
As the coronavirus gripped the country in early April, Attorney General William P. Barr ordered that early releases become a priority at several federal prisons that then had “significant levels of infection . . . and others similarly affected.”
But more than a month later, a review of court records in more than 50 federal cases — from class-action lawsuits to individual inmates’ proceedings — shows some judges lashing out at the pace of the Federal Bureau of Prisons’ response and taking action to release inmates as coronavirus exposures rise.
In a recent letter to Congress, the policymaking body that represents the nation’s federal judges called on lawmakers to temporarily change the law regarding compassionate release, and allow judges to grant it without having to wait 30 days.
“The 30-day lapse requirement in particular has prevented district courts from timely reviewing the petitions of vulnerable inmates who claim serious and irreparable harm to their health,” the letter says, noting that “there have been significant delays in BOP’s response to requests for compassionate release.”
Elements of the simmering frustrations played out at Bess’s hearing.
As she argued that the waiting period had to be honored, the prosecutor also told the judge that “it’s not a perfect system, and frankly it wasn’t built for the circumstances we’re in.”
“Come on, we’re human beings,” Vilardo said, before ordering that Bess be freed that day.
Courts weigh in on AG's hot spots
On April 3, Barr acknowledged the threat posed by the coronavirus as he focused on three facilities that then had a few dozen cases among them. The “significant levels of infection,” as Barr characterized it, made those prisons prime opportunities for home confinement releases.
As of Tuesday, the same three sites — Danbury in Connecticut, Elkton in Ohio and Oakdale in Louisiana — were reporting about 170 current cases, according to the Bureau of Prisons’ website.
Systemwide, the bureau was reporting about 2,800 active coronavirus infections among its inmates as of Tuesday night. That is out of about 170,000 inmates across the federal prison system.
The number includes 150 active infections among about 1,000 inmates at Terminal Island in California as of Tuesday night, and seven prisoners who had died of covid-19, the illness caused by the novel coronavirus.
About 120 additional federal inmates in prisons run by private companies also have the virus, the agency has said.
Due to Barr’s order, the bureau said it has transferred more than 2,400 inmates to home confinement. They include President Trump’s former campaign chairman Paul Manafort, who was less than halfway through a seven-year sentence for conspiracy to defraud the government and obstruct justice when he was released Wednesday.
The agency declined interview requests and did not reply to questions about what facilities account for the home confinement releases, and how many may have been previously scheduled. There were no confirmed coronavirus infections at the prison in Pennsylvania where Manafort was incarcerated, according to the bureau.
In a statement about its practices, the agency said more than 1,200 inmates have recovered from the coronavirus and that it is focused on “a robust medical response” at facilities with outbreaks, which includes expanding testing, maximizing social distancing with “field-ready tents,” and the use of protective gear “where resources are available.”
At Danbury, 159 inmates had been reviewed for home confinement in response to the pandemic, of whom it was granted to 21, the government said in a May 5 filing made as part of a class-action lawsuit over conditions at the 1,000-inmate prison.
The number of releases drew the ire of U.S. District Judge Michael P. Shea, who said at a hearing the next day that it does not square with “the urgent tone of the Attorney General’s memo.”
During the hearing, Shea also grappled with the implication of the 30-day waiting period for compassionate releases, the other path for moving inmates away from coronavirus in the federal system. He said he felt bound by the requirement, and had declined to release some inmates for that reason. But the government had disclosed the day before that since the pandemic, 241 Danbury inmates had applied for compassionate release — and none had yet been approved.
“I have to be honest with you, that really surprised me,” Shea said. “The numbers you’re reporting suggest . . . there’s no point in waiting the 30 days. The warden might as well tell people, look, we’re not going to be granting it.”
In a scathing opinion issued Tuesday evening, Shea directed the Danbury prison to make decisions on home confinement and compassionate release more quickly. “The 30-day period under the statute is simply dead time during which there is no prospect the BOP will come to the defendant’s aid,” he wrote.
In a similar lawsuit involving Elkton inmates, U.S. District Judge James Gwin had also ordered the government to act with greater urgency. “There is a continued risk of harm to others, including prison staff, if inmates remain in the prison and the virus continues to thrive among the dense inmate population,” he wrote on April 22.
Gwin told the government to produce a list of Elkton prisoners who were “medically vulnerable” to the virus according to Centers for Disease Control and Prevention guidelines, based on their age or underlying medical conditions. After producing a list of more than 800, the government wrote in a May 5 court filing that none of them had yet been released to home confinement.
In a separate case involving Elkton, U.S. District Judge Elizabeth A. Wolford also concluded she does not have the authority to waive the 30-day requirement on compassionate release.
But even as she declined to release an Elkton inmate because of that constraint, she expressed reluctance — and anger with the government.
“By insisting, in the face of a once-in-a-century pandemic, on opposing motions for compassionate release on technical grounds, the Government has helped create a fundamentally unjust, chaotic system,” she wrote May 6.
At the Elkton facility, 243 inmates the government itself listed as “medically vulnerable” had applied to the warden for compassionate release, the government told the court on May 5.
The warden had approved one.
Voices from across the country
Thousands of inmates across the country have sought compassionate release in recent weeks, according to federal public defenders and inmate advocates. Public data is not available on how many applied from which institutions, or how many have received it.
However, court filings show more than two dozen judges granting those requests during the coronavirus pandemic. Many voiced frustration with what they saw as a slow-moving Bureau of Prisons.
“The scale of the outbreak is immense and growing,” wrote U.S. District Judge Haywood Gilliam in deciding to release an inmate from the Terminal Island facility in late April.
At a federal prison in Fort Worth reserved for inmates with special medical needs, prosecutors pushed back against an inmate’s compassionate release on April 17, saying in court filings that only six inmates had tested positive and “transmission of covid-19 at the facility has been relatively controlled.”
Less than a week later, prosecutors withdrew their opposition, acknowledging the “skyrocketing number of infections” at the facility, court records show.
The count of confirmed positive cases at Fort Worth was 624 on Tuesday, the agency said on its website.
With cases rising, the waiting period embedded in the 30-day rule has left some judges openly struggling with whether they must abide by it and hold off on a compassionate release, or whether a public health emergency gives them discretion to move more quickly.
“It sort of boggles my mind,” U.S. District Judge John F. Keenan told a prosecutor during an April 10 hearing, according to a court transcript in one case out of the Brooklyn Metropolitan Detention Center.
The prison at Butner — where Bess had been held — has attracted criticism over its procedures for compassionate release and those awaiting bureau approval to move to home confinement.
A 14-day quarantine precedes a release to home confinement.
At Butner, court records show, dozens of inmates awaiting home confinement had been put into the mandated quarantine. But those inmates had not been tested for the virus beforehand and were held in large groups.
Once anyone tested positive, the quarantine clock reset for everyone, prompting some judges to turn to compassionate release as the route to move vulnerable inmates.
“This is an illogical and self-defeating policy that appears to be inconsistent with the directive of the Attorney General,” wrote one judge in an April 18 decision to release a Butner inmate who had been in quarantine for four days, only to have the wait start anew after someone in the same group was found to be infected.
In another case, a Butner inmate was approved for home confinement, but with a start date of May 22.
A judge granted him compassionate release on April 29, noting that days after he was placed in quarantine with a group of 45 other inmates, 31 tested positive.
As of Tuesday, about 250 of the 4,500 inmates in the sprawling correctional complex in North Carolina are currently infected with the coronavirus, and seven have died of covid-19.
The threat from the virus weighed heavily on Bess, he said in a phone interview from Jamestown, N.Y., where he lives for now with his wife and mother.
Prosecutors have said they will appeal the court decision that released him.
At Butner, he said, he was in a dormitory-style unit with about 160 other men.
“All the elderly and sick inmates there, I thought we would have a big problem on our hands,” Bess said. “I prayed, ‘Please, God, don’t let this happen here.’ ”