A woman displays a message demanding more protection for prisoners against the COVID-19, in Larkspur, Calif. on Saturday, May 9, 2020. (Photo: Paul Chinn/The San Francisco Chronicle via Getty Images)
Steven Brayfield was almost home. The 63-year-old from Springfield, Missouri, fought over six months for “compassionate release,” arguing in his emergency bid for freedom that he’d be unlikely to survive a coronavirus outbreak in federal prison. In the end, he was proven right.Brayfield suffered from Type 2 diabetes, kidney problems, and obesity, among other health issues. He first asked his warden for compassionate release in July, when the dangers of COVID-19 in prison were already well documented but before the virus began to wreak havoc inside the minimum-security camp at the U.S. Penitentiary in Leavenworth, Kansas. He had just under two years left to serve on a non-violent, meth-related drug conviction.
Brayfield—Stevie, as his mother called him—planned on going back to Springfield, reuniting with sons and brothers, and working with cars. But by Jan. 3, he was running a fever and tested positive for COVID. As he was struggling to breathe, prison staff escorted him to the hospital, where he was handcuffed to the bed. The next day, Brayfield’s judge granted his compassionate release request, reducing his sentence to time served. But his condition worsened and doctors put him on a ventilator. His public defender asked the judge to reverse the ruling, telling the court that if Brayfield died a free man, his family would be unable to afford the medical bills. He hung on until Jan. 19, remaining a federal prisoner until his last gasps for air.“You keep on thinking, my god, he’s so close to coming home,” said Shirley Marler, Brayfield’s 84-year-old mom. “Well, he came home alright, but in a box.”Brayfield is one of at least 54 federal prisoners to die from COVID-19 after having a compassionate release request denied or delayed without a final resolution, according to data provided to VICE News. The data, compiled by the University of Iowa’s College of Law’s Federal Criminal Defense Clinic, shows how a deluge of compassionate release requests during the pandemic overwhelmed the recently reformed system, leading to vulnerable people dying behind bars when they were eligible for freedom.
Additional analysis of over 4,000 cases, based on data compiled by a researcher at Georgetown Law School and shared with VICE News, highlights a lasting legacy of former President Donald Trump: Judges appointed by Republicans grant compassionate releases at lower rates than Democratic appointees. Trump’s prolific stacking of the federal courts, where judges serve for life, will likely shape the way such cases are handled for many years to come. From 2020 to mid-January 2021, federal judges granted compassionate release to 2,271 prisoners, according to data provided to VICE News by the Administrative Office of the U.S. Courts in Washington, D.C. The rulings freed people who might have otherwise contributed to the tragic toll of COVID-19 (225 deaths and counting) inside the federal Bureau of Prisons.
The scales tip both ways, criminal justice reform advocates say, with some judges moving swiftly to get vulnerable prisoners to safety and others denying nearly all requests or letting the process drag on for months. The uncertainty creates anxiety for both prisoners and their family members on the outside, and ultimately costs lives.“We don’t know how many more prison deaths there would have been without the compassionate releases,” said Kevin Ring, president of the nonprofit FAMM, formerly Families Against Mandatory Minimums. “But it’s shameful that some judges out there didn't use this authority.”
In years past, compassionate release was virtually impossible for federal prisoners to obtain—an option made available only in life-or-death emergencies, at the discretion of prison officials. Between 2013 and 2017, the BOP approved just 6 percent of requests, letting out over 300 people, while 266 others died in prison custody after their requests were denied.The passage of the First Step Act in 2018 reformed the system, allowing federal prisoners under “extraordinary and compelling” circumstances to petition their sentencing judges directly for compassionate release. Prisoners still have to “exhaust” their options within the BOP, but after 30 days the request goes to the courts. Prosecutors typically argue against the person getting out, and defendants can submit evidence such as medical records or letters of support. But even with the changes, compassionate releases remained rare at first. In 2019, judges granted fewer than 100 total, according to the Administrative Office of the Courts.The pandemic changed everything. Coronavirus turned federal prisons into death traps, especially low-security institutions with dorm-style housing units. Suddenly the federal courts were flooded with compassionate release requests, with judges receiving more than 10,000 applications in just three months, from last March to May. Those who follow the courts closely have been frustrated by inconsistent applications of the law or lack of leniency by judges, especially ones appointed by Trump and George W. Bush.
Alison Guernsey, a professor at the University of Iowa College of Law, began tracking cases early last spring where prisoners died from COVID-19 after their requests were denied. Guernsey started doing what she calls “legal obituaries, looking at every legal thing that happened to someone before they died, then screaming into the void of Twitter about it, because I didn’t know what else to do.”What she found was case after case where federal prisoners tried to warn anyone who’d listen that catching COVID-19 would be a death sentence. Guernsey tracked the deaths in a spreadsheet, noting the person’s age, the nature of their conviction, and other details.
There’s Icee Omar Ali, a 61-year-old Black man with diabetes and hypertension, who petitioned his judge for compassionate release last October. Despite being 18 months away from the end of his sentence and over 20 years removed from his last bank robbery, Ali’s request was denied in January. He died two months later, on March 1, at a federal prison in Colorado.There’s Waylon Young Bird, a 52-year-old Native American man sentenced to 11 years over just 5 grams of meth. Young Bird was held at a federal medical center because he had kidney failure and severe health complications from diabetes. He requested release in April and got a final rejection in August. As COVID spread at his facility, he pleaded with the judge to reconsider. “I’m afraid I may be infected by the time you receive this letter,” he wrote on October 27. “It’s not looking good here.” He was dead within a week.
The deaths are stacked row after row, many involving non-violent drug offenders or people who’d already paid their debts to society with lengthy sentences yet still could not persuade a judge to let them out early. Roughly one in four of the dead had filed a compassionate release request.Altogether, 93 percent of the dead had some kind of pre-existing condition. Four of the casualties were imprisoned solely on marijuana-related charges, including two who died with pending compassionate release claims.
“It’s appalling,” Guernsey said. “I don’t know if it’s a judiciary that doesn't have the resources to deal with all the cases they're seeing on an emergency basis. This is a once-in-a-lifetime event for most judges. And the other part is they have little motivation to do anything. Finality is such a fundamental part of our legal system; to open up or revisit sentences is a very difficult thing for judges to do.”Judges are supposed to be neutral arbiters of the law, but ideology inevitably creeps into the decision-making. Victoria Finkle, a Georgetown University law student, tracked and analyzed over 4,000 compassionate release cases around the U.S. from March to October 2020, concluding based on the data that “Trump and G.W. Bush judges are granting sentence reductions less than half as often as judges appointed by Clinton or Obama.”
“Finality is such a fundamental part of our legal system; to open up or revisit sentences is a very difficult thing for judges to do.”
Trump appointed 234 judges to the federal courts. Of those, three-quarters are male and over 84 percent are white. Trump’s appointees also skew younger, Finkle noted, meaning they “will likely spend decades on the courts” due to lifetime appointments. Finkle said there’s no easy way to counterbalance, other than Biden appointing as many judges as possible.“My instant answer is get more Democrats on the bench,” Finkle said. “The administration seems to be trying to do that to the extent possible, but that’s not a short-term solution.” Federal judges also tend to have backgrounds as prosecutors or experience at large, corporate law firms, which yield political connections. Just 1 percent of circuit-court judges spent the majority of their careers in a legal-aid job or as public defenders, according to the Center for American Progress. The real-world implications of that disparity can be striking.
Take the Eastern District of Michigan, the federal court based in Detroit. Using Finkle’s data and additional research, VICE News compiled a snapshot of all compassionate release rulings in the district’s court from March to October last year. We also tallied every compassionate release granted through March 8, 2021.The data shows one jurist—Senior Judge Arthur Tarnow, a Clinton appointee with a background as a public defender—granting 36 releases, twice as many as his next-closest peer. Five judges granted three or fewer requests in the same period.
The data, which includes over 300 total rulings, suggests racial bias may subtly factor into decisions. White or Latino prisoners were just over 3 percent more likely to have their request approved than Black defendants. The case of Isaac Hargrove, a 47-year-old Black man from Detroit, fell to Judge Nancy Edmunds, a George H.W. Bush appointee in the Eastern District of Michigan. Hargrove made a compelling case for compassionate release. He’s confined to a wheelchair and suffered heart aneurysms that nearly killed him last year while he was incarcerated in a federal prison in Hazelton, West Virginia, for a non-violent drug conviction. Hargrove was sent back to prison after his hospital stay, despite the threat of COVID-19 and his other underlying health conditions, including diabetes. He initiated the compassionate release process last June, filing an “emergency motion.” Despite the urgency of the situation, he didn’t get a ruling from his judge for over seven months.In our March-October 2020 snapshot, Judge Edmunds received 19 total compassionate release requests and approved just three: two for white prisoners and one for a Black man, even though 16 of the cases she heard were from Black prisoners. In late January, Hargrove sounded desperate speaking by phone from prison. There was a COVID outbreak at Hazelton, which has since infected 150 prisoners, killing one. But Hargrove’s case sat languishing on his judge’s docket, a life-or-death decision that seemed to hang in the balance with no urgency.
“They’re dropping like flies up in here,” Hargrove said. “With this pandemic—I don’t know what my judge is on. I said, ‘What y'all trying to do, kill me in here?”A federal public defender filed several additional motions on Hargrove’s behalf, and Judge Edmunds eventually approved his release on February 11. Later in the month, Edmunds issued decisions that freed three other Black men, bringing her total number of compassionate releases granted since last year to eight.Tarnow and Edmunds referred questions to a spokesperson for the Eastern District of Michigan courts, who declined to comment, saying “judges typically speak through their orders, opinions, and what they say on the bench.” Shortly after getting out, Hargrove was hospitalized again due to heart problems. He was glad to be out of federal custody, and thankful to the judge for finally granting his freedom. He said many prisoners who had only minor health problems filed compassionate requests, which he thinks “crowded the system.” But he ultimately blames prison wardens, who have the discretion to initiate compassionate releases, for not taking the initiative to free the most vulnerable.
“They’re dropping like flies up in here. What y'all trying to do, kill me in here?”
“It’s not really the courts holding us up,” Hargrove said. “It’s the wardens. If they’d turn around and look at the reality of the situation, it could take a lot of weight off the courts. They’re just holding us in there for dear life.”Advocates tend to agree, saying the First Step Act provided essential reforms to the compassionate release system. FAMM’s Ring said the slow handling of cases is partially a reflection of judges proceeding with caution because they are unfamiliar with the new law.“The hope is that having this baptism by fire that many judges have had because of the pandemic will make them more willing to rely on this going forward,” Ring said, adding that a culture change in the BOP is also long overdue. “It should be wardens telling the staff ‘Hey, find me people that don't need to be here.’ If you’ve got people in your prison who are hooked up to oxygen, use the tools you have to get them out.”The deployment of COVID-19 vaccines promises to help protect staff and prisoners (the BOP says nearly 81,000 doses have been administered so far), but the coronavirus is still wreaking havoc in the federal system. As of mid-March, the BOP reported active infections in more than 500 prisoners and nearly 1,400 staff.
Many prisoners with underlying health conditions are still waiting for final decisions on their compassionate releases. Among them is Tamral Guzman, a 50-year-old woman in a low-security federal prison in Tallahassee, Florida, where over 450 prisoners have tested positive for COVID. Guzman, a mother of three, has been seeking a compassionate release since before the pandemic, first initiating the process in January 2019, through her prison warden. Guzman is a breast cancer survivor with a variety of medical issues, laid out in painstaking detail in court filings, but she initially wanted out to tend to her ailing mother.“She was having a really hard time and she said, ‘Please don't let me die without my daughter and please don't let her die in prison,’” said Guzman, who is serving over 20 years for a prescription-drug conspiracy case and failure to appear in court.Guzman’s first request for compassionate release was denied in May 2019, and later her mother passed away. In early 2020, Guzman filed a new request with the warden in Tallahassee and was initially told she would be released under the CARES Act stimulus bill. The legislation expanded early-release eligibility for federal prisoners, but Guzman saw her decision reversed as the BOP shifted its criteria.To her family on the outside, the process has been maddening. Guzman’s brother Ryan Gardner, a doctor, has been especially concerned after hearing about his sister’s deteriorating health and the low standard of medical care she’s received during the pandemic. “If she was out, we could give her the proper treatments,” Gardner said. “She’s just a tax burden right now, and she doesn’t need to be. There’s people that need to be in prison, but she’s not one of them.”Without the help of a lawyer, Guzman tried seeking a reduced sentence and also re-filing her compassionate release request. Judge Thomas Varlan, a George W. Bush appointee in the Eastern District of Tennessee, denied Guzman's sentence reduction in December but put off a decision on her compassionate release, saying he would rule “in due course.”Nearly three months later, Guzman is still awaiting a final verdict. She’s already gotten sick with COVID-19 and recovered, but she’s still holding out hope for a compassionate release.“Thank God I'm still breathing,” she said. “I just want to try to get home to see my kids and my family. It's been exhausting. It seems like a merry-go-round. They say, ‘Oh yeah, you have to go see this person,’ or ‘Oh, we're working on it,’ but it just keeps going in circles.”