By Brad Heath, Sarah N. Lynch
WASHINGTON (Reuters) – Five inmates at a federal prison in Oakdale, Louisiana, have died since March 28 after contracting the coronavirus. Harold Lee’s family fears he could be next.
Lee, who was sentenced in 2018 for a bank fraud conviction, has asked a federal court for release on home confinement. The 59-year-old has hypertension and requires a breathing machine to sleep.
Oakdale was the country’s first federal prison to report fatalities from COVID-19, the respiratory illness caused by the coronavirus. The head of the local guard’s union says dozens of inmates at the complex’s low-security unit, where Lee is housed with nearly 1,000 other prisoners, are showing flu-like symptoms.
The U.S. Justice Department, which oversees the nation’s largest prison system, wants to keep Lee behind bars. Lee’s concerns "are based entirely on speculation and generalized fear," a federal prosecutor said in a filing this week. The case is still pending.
Prosecutors have been making similar arguments in federal courts across the United States, according to a Reuters review of documents from dozens of court cases, and interviews with attorneys, legal advocates and inmates’ relatives.
At a time when some prison authorities in states from New York to California are rushing to free non-violent offenders, elderly criminals and other medically high-risk prisoners, the DOJ so far has taken a more cautious line on coronavirus-related releases from federal facilities.
Court documents show federal prosecutors have contended that judges cannot force the government to put prisoners on home confinement. They have urged courts to deny bond to defendants who are in jail awaiting trial. They have suggested that some inmates with pre-existing medical conditions would be safer in prison than at home. And they have expressed skepticism about claims of virus-related illness among people facing incarceration.
In West Virginia, for example, prosecutors on March 27 asked a court not to postpone the date when a man convicted on a gun possession charge was supposed to report to jail, after the defendant’s attorney asked for more time because his client, Ricky Nelson, was displaying COVID-19 symptoms. A judge has twice-delayed his surrender date anyway, based on a doctor’s note.
"They’re fighting the release of vulnerable people on technicalities. It’s disgusting," said Kevin Ring, president of Families Against Mandatory Minimums, a group that has pushed to reduce the number of people in prisons.
Criminal-justice advocates like Ring have warned for months that U.S. jails and prison are potential hothouses for infection. Inmates live in close quarters, share bathrooms and dining halls, and often have limited access to health care.
Nearly 2.3 million people were locked up in the United States in 2017, according to the latest count by the U.S. Bureau of Justice Statistics; it’s the highest incarceration figure in the world by far. The federal prison system alone houses approximately 175,000 inmates.
The Justice Department told Reuters it is working towards transferring more inmates to home confinement. And it has instructed prosecutors to utilize video-teleconferencing and to seek continuances in cases of non-violent offenders awaiting sentencing.
Since last week, the federal Bureau of Prisons (BOP) has approved 500 inmates for release to home confinement, Justice Department spokesman Wyn Hornbuckle said.
The Justice Department is "focusing on how to best protect the health of vulnerable inmates and the general public," Hornbuckle said.
In addition, the $2 trillion stimulus bill signed by U.S. President Donald Trump on March 27 included a provision designed to make it easier for federal prisons to release more people into home confinement to help control the coronavirus outbreak.
Still, states and municipalities are far outpacing the federal system, particularly in areas hard hit by the virus. Los Angeles County alone released more than 1,700 detainees before the end of March, while New Jersey’s chief justice recently ordered the release of 1,000 jail inmates statewide.
Coronavirus case numbers are exploding in Louisiana. Emily Arseneau, Lee’s daughter, said she fears for his safety and wants to see him released.
Lee, who originally was sentenced to five years for lying to banks to obtain $2 million in loans, has served about 1½ years. He is due to be re-sentenced because a court calculated his prison term incorrectly.
"I’m afraid that if he gets sick, that’s it," she said. "He doesn’t deserve to lose his life over bank fraud."
Medical experts say people with underlying respiratory problems are especially vulnerable to the coronavirus, which has killed at least 54,000 people across the globe including more than 6,000 in the United States. There are about 10,000 people over the age of 60 in federal custody, and federal defenders say about a third of them have preexisting conditions.
Some legal scholars doubt that a spate of inmate releases will reduce the overall risk to society. Prisons must continue operating, so the best course is to take measures inside those facilities to deal with the virus, according to Jon Guze, director of legal studies at the John Locke Foundation, a conservative think tank in North Carolina.
"Jails and prisons are not like schools and universities," Guze wrote in a recent research brief. "Sending everyone home is not an option."
ARGUING AGAINST RELEASE
Even before the coronavirus pandemic, the quality of federal prison healthcare was under strain. The Justice Department’s inspector general last year cited prison healthcare as a major management challenge, saying the prison population’s demographics "heighten the challenge of providing proper care for inmates, including aging inmates, inmates with chronic illnesses, and inmates with mental health issues."
Around 75 inmates and 39 staffers have contracted the coronavirus in U.S. federal lockups, according to the BOP. But public defenders, families of incarcerated loved ones, and union leaders at prisons suspect the numbers are higher. At Oakdale, the BOP has started to presume people showing symptoms are positive.
Fearful of the spread, inmates nationwide have started asking the courts to set them free, be it shortening their sentences, freeing them on bond or granting a compassionate release if they are elderly, sick or terminally ill.
Federal prosecutors have broadly opposed those requests.
In filings reviewed by Reuters, prosecutors echoed the argument they made in the case of Lee – that inmates’ anxieties are unwarranted, and that detainees are likely to be as safe in prison as they are on the outside.
Take North Carolina inmate Larry Winckler. A convicted embezzler, the 59-year-old has terminal cancer. He asked a judge for compassionate release as the coronavirus has spread through his prison in rural Butner.
Assistant U.S. Attorney Ross Lenhardt wanted the court to deny that request. In a filing, Lenhardt said conditions in his neighborhood were similar to those in the prison in the respect that both he and Winckler were located close to medical treatment facilities and had neighbors who were quarantined.
On Friday, a judge ordered that Winckler should be released from prison immediately due to his terminal cancer. The judge did not directly address the threat of the coronavirus pandemic.
Elsewhere, federal prosecutors have said there is no need to free prisoners from facilities where authorities have not yet confirmed cases of the virus.
Prosecutors objected when 64-year-old Teresa Gonzalez, who has emphysema and chronic obstructive pulmonary disease, asked to be released a few months early from a jail in Spokane, Washington, where she had begun a short sentence for her role in a scheme to defraud insurance companies. They argued that no inmates had tested positive for COVID-19, thus her request was "currently predicated on a hypothetical."
A federal judge disagreed and sent Gonzalez home this week. Her lawyer, Sandy Baggett, said the Justice Department’s resistance was surprising. Gonzalez, Baggett said, "ticked every box" for the kind of prisoner who should be released – an older, sick, non-violent offender with no prior record. "If you’re going to oppose that one, I would assume you’re not going to consent to any," she said.
In other cases, federal prosecutors have said old or ill prisoners would be worse off at home.
When a jailed 78-year-old awaiting trial on drug charges in Michigan recently asked a judge to be released on bond because his age puts him at risk from the virus, prosecutors objected.
"An argument can be made that he potentially is safer where he is – sheltered in place in a facility that has the ability to control people’s interactions, screening of people coming in from the outside," they wrote in a filing.
Prosecutors have also asserted that judges lack the power to let prisoners serve out their sentences at home. That was one of the arguments prosecutors made in the case of Lee, the Oakdale inmate.
David Joseph, the U.S. Attorney for the Western District of Louisiana, told Reuters his office would not oppose an expedited re-sentencing hearing by video conference, where Lee’s defense lawyer could bring up concerns about his client’s health in the face of the coronavirus pandemic.
In a filing Friday, Joseph’s office contended that it fears that Lee now has more incentive to flee if released "due to the unique circumstances associated with the COVID-19 pandemic."
BIG NEW POWERS
Prior to the new economic stimulus law, the BOP could only release inmates to home confinement who had already served 90% of their sentence or had no more than six months left to go.
The new law allows the BOP director more discretion. But Attorney General William Barr must first declare a state of emergency for the federal prison system, something he has yet to do.
Hornbuckle, the department spokesman, said officials are considering that, and "will take a reasonable, lawful and safe approach" to deciding on home confinement for non-violent defenders.
A day before Trump signed the stimulus bill into law, Barr issued a memo ordering BOP to begin considering who can be released into home confinement. The memo requires BOP to weigh factors beyond age and health, including the inmate’s criminal history and behavior in prison. It also requires a determination as to whether a release could worsen community transmission of the virus.
"We cannot take any risk of transferring inmates to home confinement that will contribute to the spread of COVID-19," Barr wrote.
Reporting by Sarah N. Lynch and Brad Heath in Washington, D.C.; Editing by Marla Dickerson