As of early last month, 562 of the release requests had been adjudicated by Superior Court judges, and 176 had been granted, according to court data. Although the U.S. attorney’s office in the District has opposed all but a handful of the petitions, Facon’s case marks the first time that prosecutors have gone to the Court of Appeals to challenge an approved release.
The outcome of the appeal could affect how the city’s compassionate-release law is applied in the months ahead, now that vaccine doses are readily available, and impact some of the 300-plus prisoners whose petitions have yet to be decided.
After Superior Court Judge José M. López on Aug. 4 ordered Facon to be freed within three days, the U.S. attorney’s office in the District said it would seek to have the ruling overturned. Prosecutors asked the appeals court to keep Facon behind bars pending further legal arguments, and the court agreed to do so.
In opposing his freedom, prosecutors argued that Facon, imprisoned since 1999, does not qualify for compassionate release under any of the criteria listed in the D.C. law. They said López “abused” his discretion in the case of a prisoner whose litany of crimes, including armed kidnapping and sexual assault, “are as serious as most any imaginable.”
Their challenge in the Court of Appeals focuses mainly on the vaccination issue.
López appeared to give little weight to the fact that Facon has received both doses of the Pfizer-BioNTech vaccine in prison, which prosecutors said greatly reduces his risk of becoming severely ill with covid-19, the disease caused by the virus. The judge wrote that the vaccine “is not 100% effective” and cited “uncertainty regarding the efficacy of the Pfizer vaccine against variants of the COVID-19 virus.”
All three vaccines approved for use in the United States are highly effective against severe covid-19 that could lead to hospitalization and death. Although vaccinated people can develop breakthrough infections, their symptoms are typically mild.
López, however, wrote, “Risk appears to remain.”
Prosecutors said his decision contradicts state and federal court rulings all over the country in recent months denying pandemic-related releases for inmates who have been inoculated against the virus — including prisoners with underlying health problems.
Facon’s lawyers said he suffers from hypertension, hepatitis C and type 2 diabetes. They also said he is obese. Prison records show he is 6 feet tall and weighed 245 pounds in September.
A spokesman for the U.S. attorney’s office declined to comment on the litigation. In a statement, Facon’s attorneys promised to fight the appeal, saying López “carefully weighed the facts and properly applied his authority under the law.” López, appointed to the bench by President George H.W. Bush in 1990, is barred by Superior Court rules from commenting publicly on his rulings.
Facon, described by his lawyers as a recovering drug addict who quit school in the ninth grade, served 10 years in prison for armed robberies in Maryland and the District before being paroled on March 11, 1998, court records show.
Just weeks later, on the afternoon of April 22, 1998, police said, an office worker was getting into a Toyota Camry near Howard University when a man wielding a 10-inch kitchen knife attacked her. He drove her to a park in Northeast Washington, slashing and beating her on the way, then raped her in a gazebo, took her money and fled in the car.
Police said they arrested Facon the next day after an officer saw him at a gas station with the Toyota. Among other incriminating evidence, authorities said, his DNA matched the DNA in semen found on the 24-year-old victim’s body and clothing.
On July 23, 1999, after a jury found him guilty of rape, kidnapping, carjacking, armed robbery and other charges, a Superior Court judge sentenced him to life without the possibility of parole. D.C. inmates serve their time in federal prisons. Facon is in the Federal Bureau of Prisons’ McCreary penitentiary in Kentucky.
The legal fight over his release petition arises from a law passed unanimously by the D.C. Council and signed by Mayor Muriel E. Bowser (D) early in the pandemic, as officials nationwide enacted emergency measures to limit infections, including in congregate settings, which proved to be virus hotbeds.
Like other jurisdictions seeking to reduce the spread of the virus in prisons by easing crowding, the District set up a process by which vulnerable, freedom-worthy inmates could have their sentences cut short. The law created three main criteria for evaluating petitions and requires a prisoner to qualify for release under each of the three.
The first two are fairly straightforward: A Superior Court judge must be convinced that the prisoner would not pose a threat to public safety if freed and that the inmate has been rehabilitated while incarcerated.
The third is more intricate and includes several options: Inmates have to be terminally ill. Or they have to be older than 59 with at least 25 years served. Or, if they don’t meet either of those conditions, they can show some other “extraordinary and compelling” reason for a release petition to be granted.
Although the law includes examples of what constitutes an extraordinary and compelling reason, the list is not exhaustive, and ultimately a judge has to decide whether an inmate’s particular circumstances fit the bill.
Facon isn’t terminally ill. Nor is he older than 59. Nor does his case match any of the examples. To satisfy the third criterion, his attorneys said in court that his health woes are an extraordinary and compelling reason for him to be freed — that his diabetes, hepatitis, hypertension and weight put him at high risk of severe illness if he contracts the virus.
Prosecutors, to no avail, argued to López that with the advent of vaccines, Facon’s medical situation should not be considered extraordinary and compelling.
His release petition runs 400-plus pages, including a raft of health and prison-behavior records, and was prepared by lawyers Allanté Keels and Matthew Jones of the giant firm Wilmer Cutler Pickering Hale and Dorr, which is representing Facon as part of its pro bono work.
“Having overcome the substance abuse issues that burdened him at the time of the offense, and having served 20 years in prison with an unremarkable disciplinary record, Mr. Facon is rehabilitated and poses no danger to society,” Keels and Jones wrote. The U.S. attorney’s office argued otherwise, but López sided with Facon on those points.
The judge said Facon’s “criminal history, as well as the fact that 10 years in prison did so little to rehabilitate him in the past, weigh heavily against his release.” Yet “the amount of time since any severe disciplinary infraction, his advanced age, poor health, sobriety, and strong family ties all support that he is no longer a danger to the community.”
As for the third prong of his ruling — that Facon’s ailments amount to an extraordinary and compelling justification for him to be freed — the D.C. Court of Appeals will decide whether López erred in discounting the efficacy of vaccines. In ordering Facon’s release, the judge suspended the remainder of his life term, meaning it could be reimposed if Facon were to commit a crime while free.
Last month, in a different case, the Chicago-based U.S. Court of Appeals for the 7th Circuit said that “for a vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.” Prosecutors told López, “Courts throughout the country issue opinions reaching that same conclusion on a daily basis.”
Still, Facon’s lawyers vowed to keep fighting.
“We oppose any efforts by the United States Attorney’s Office to further delay Mr. Facon’s release,” Keels and Jones said in their statement. “After spending two decades in federal prison, Mr. Facon is rehabilitated and prepared to become a productive member of society.”
Lenny Bernstein contributed to this report.