Inmates seeking release from COVID-hit prisons have next to no chance in this NC district
During the pandemic, Meghann Burke says she was often approached by families of federal inmates who wanted her to file “compassionate release” motions to get their loved ones out of prison.
She says she almost always told them no.
Burke, a prominent Asheville defense attorney, says she’s morally opposed to accepting money for cases she knows she cannot win.
In the Western District of North Carolina, she says, compassionate release is “a futile hope.”
In fact, there is no federal court district in the country less receptive to those requests than the federal judicial district that runs from east of Charlotte to the Tennessee line.
During 2020, as the pandemic enveloped the country, Western District judges heard 337 motions for compassionate release, most of them tied to fears of prison outbreaks of COVID-19, according to a July report by the U.S. Sentencing Commission. The judges denied all but five.
That’s an approval rate of about 1.5%, the lowest of any federal court in the country.
The U.S. Virgin Islands had a 0% approval rate, but that court heard just six requests, the report says. North Carolina’s Western District, on the other hand, handled the sixth-highest number of compassionate-release cases in the country last year.
By comparison, the neighboring Eastern District of North Carolina, which stretches from Raleigh and Fayetteville to the Outer Banks, approved release in 25% of its 224 compassionate-release requests. The Middle District, which includes Winston-Salem and Greensboro, had an approval rate of 6.2%, granting 10 of 162 requests.
In the Western District, inmates face an additional barrier. The U.S. Attorney’s Office routinely opposes compassionate-release requests, often arguing that the inmates involved still pose a threat to public safety.
Normally, defense attorneys are loathe to publicly criticize the judges and prosecutors with whom they practice. But the almost-guaranteed failure of compassionate-release requests in the Western District has some lawyers speaking out with unusual candor.
“Those numbers are shocking,” says Jake Sussman, a Charlotte attorney active in civil rights cases and legal reforms. “They suggest that our U.S. Attorney’s Office and federal bench are extreme outliers when it comes to sentencing, and that even when there are safe and responsible ways to take someone out of harm’s way in prison, the preoccupation with punishment leaves no space for a compassionate response to a dangerous public health crisis.”
The Western District also stands out among its neighbors in the federal Fourth Circuit, which includes the Carolinas, Maryland, Virginia and West Virginia.
Overall, the circuit’s approval rate for compassionate-release motions last year was 15.7%, fueled by Maryland’s 37.6% and the Western Virginia courts at 28.6%. The South Carolina federal courts approved almost 20% of their compassionate-release motions.
Do judges and prosecutors in the Western District apply a different and tougher standard? Chief U.S. District Judge Martin Reidinger of Asheville, who became the district’s presiding judge in June 2020, says no.
“The only ‘policy’ that this Court has regarding compassionate release is that each judge should apply the law as he understands it, to the unique facts presented in the case before him,” Reidinger said in an email to the Observer. “Each case is unique, and therefore statistical data over the early phase of these motions tells you very little.”
The U.S. Attorney’s Office in Charlotte said in a statement to the Observer that it considers each case on the grounds for release, the nature of the original offense and any remaining threat to public safety.
But as a resurgent strain of COVID-19 continues to hammer the country and threaten the 131,000 inmates held in federal prisons, some attorneys say the almost blanket rejection of early release motions in the Western District raises serious questions of fairness, safety and the application of the law.
“There’s is nothing about sentencing or the types of cases in the Western District that make them any less worthy of having these motions seriously considered and granted,” says Sussman, who has worked on legal reform issues with such advocacy groups as the Fair Punishment Project at Harvard Law School. He also has a client currently seeking compassionate release.
“It’s statistically bizarre and almost impossible to reconcile these massive differences between places that are in the same circuit or geographically contiguous. Yet the U.S. Attorney’s Office and federal bench appear to be approaching these cases in a manner unlike any other federal district.”
Aggressive trial schedules
The low approval rates for early release requests are part of a statistical abstract that shows Western District prosecutors and judges as contributing to one of the most aggressively law-and-order federal court systems in the country. Four of the five judges previously served as federal prosecutors. Two were U.S. Attorneys.
According to the sentencing commission, defendants convicted of federal crimes here receive harsher sentences than in other parts of the country. In fiscal 2019, for example, the mean prison term in the Western District was 65 months, 55% higher than the national figure.
Even before sentencing, criminal defendants in the Charlotte, Asheville and Statesville federal courthouses are far more likely to be held behind bars before they have been convicted of a crime. The district’s rate of pretrial detention is the fourth highest in the country.
While the virus impacted court operations in the Western District, it did not significantly slow them down. During the pandemic, while overall federal criminal filings in fiscal 2020 dropped by 20%, they rose by almost that exact percentage in the Western District, the largest jump in the country, according to the Sentencing Commission. Meanwhile, the judges pushed ahead during the pandemic with one of the most aggressive trial schedules of any federal court.
Requests for compassionate release for COVID-19 and other factors, on the other hand, can languish.
In May 2020, Burke filed an emergency compassionate release motion in Charlotte for Kelvin Beaufort, a 44-year-old wheelchair-bound paraplegic who has diabetes and high blood pressure. Those conditions, combined with an outbreak of COVID-19 cases at his Louisiana federal prison last spring, placed Beaufort “at significant risk of death,” Burke wrote.
Prosecutors opposed the release, saying in part that he was at least as likely to contract COVID-19 in Charlotte as in his prison and that, despite his physical limitations, he still posed a threat to the public.
Three months after her filing, the federal Bureau of Prisons released Beaufort temporarily to home confinement. That means he may be ordered to return to prison once the pandemic eases.
Meanwhile, 15 months after Burke’s motion was filed, U.S. District Judge Frank Whitney of Charlotte has not ruled. Beaufort, whom Whitney sentenced to 262 months in 2007 for his role in a wide-scale drug ring, still has four years remaining, according to a court filing.
Burke says the sentencing commission report confirms what defense attorneys already know about the Western District: Defendants here face a different brand of justice.
“Defense attorneys are the voices screaming in the wilderness, and I don’t think we’re the crazy ones,” says Burke, who is closing her criminal practice after becoming executive director of the players’ union of the National Women’s Soccer League.
“The numbers are jarring. Your geography remains one of the most relevant factors in determining the sentence you receive or the severity of the punishment. In a country that guarantees equal protection under the law, I think that should raise some constitutional questions.”
Whitney told the Observer that Beaufort deserved a decision on his release request before now.
“We did a poor job of tracking this particular case — 15 months is too long,” the judge said. “We do try to a thoughtful analysis of these cases. It shouldn’t have fallen into the cracks.”
‘Not very compassionate’
Under the 2018 series of legal reforms known as the First Step Act, prisoners can directly petition the courts for compassionate release based on “extraordinary and compelling” medical, humanitarian or family information.
Most of the requests cases are heard by the sentencing judge. Before, the requests had to have the support of either prison officials or government lawyers. No longer. According to the sentencing commission report, 96 percent of the requests that the courts ruled upon in 2020 came from inmates.
While end-of-life issues traditionally made up many of the requests, compassionate release motions “spiked enormously” during the pandemic, says Juliana Andonian, counsel for FAMM, a criminal justice reform nonprofit in Washington formerly known as Families Against Mandatory Minimums.
According to the sentencing commission report, the federal courts considered 12,885 compassionate-release requests in 2020; 2,604 were approved, compared to 145 in 2019.
Similar or higher numbers of early-release requests are expected as the highly infectious strand of the coronavirus known as the delta variant threatens prisons.
As of Aug. 25, the Bureau of Prisons reported 421 federal inmates and 386 staff members had recently tested positive for the disease. Almost 42,900 prisoners and 7,200 prison personnel have been infected by the disease and have recovered; 244 inmates and five staff members have died.
According to UNC Chapel Hill political scientist Frank Baumgartner, who was writing for the Washington Post, the disease has already killed at least 2,700 inmates held in various facilities.
While the national approval average for 2020 compassionate-relief requests was a little over 20%, the success rate is strongly skewed by geography.
The 10 highest approval rates, with the exception of Kansas, were found in such blue states as Oregon (69.8%), Rhode Island (64.4%), Massachusetts (62.3%) and Vermont (52.3%); the 10 lowest were found in Sunbelt states such as Texas, Oklahoma, Georgia, Mississippi and Arkansas.
“The disparity between court districts is a startling and concerning thing,” says Andonian, who described a scenario in which two cellmates file compassionate release requests involving similar charges, except one inmate was originally sentenced in Charlotte while the other was tried in Oregon.
“In that case, the system feels profoundly arbitrary and not very compassionate,” she says. “That’s the part you can’t change — your sentencing judge.”
Critics of the commission report say its data is a limited snapshot that doesn’t include details of the filings — for example, some requests that were rejected in 2020 in North Carolina’s Western District have since been approved — the demographics of the prisoners or the nature of their crimes.
Experts say the numbers do reveal a wide disparity among the courts on what qualifies as “extraordinary and compelling” grounds, and how big a factor COVID-19 should play.
“Just like COVID created uncertainty in every other part of our world, I think judges had just an incredible range of different reactions to how COVID should influence their new discretion here,” Ohio State law professor Douglas Berman told Buzzfeed in June.
“Progressive judges … viewed COVID as a much more kind of existential threat to the lives of prisoners than people who politically and socially were in communities where it’s like, ‘Eh, maybe it’s like a bad flu, but we don’t let prisoners out because they get a bad flu.’”
In March, Sussman filed a compassionate-release motion for Charles Jenkins of Charlotte, who was sentenced by Whitney in 2012 to 180 months for firearm and cocaine charges. He has been imprisoned for more than 11 years.
The U.S. Attorney’s Office has opposed Jenkins’ release.
Jenkins originally was sent to a South Carolina federal prison before being moved to a medical prison in Fort Worth, Texas, after Sussman filed the motion. At least 15 inmates have died there from COVID-19, third most in a Bureau of Prisons facility.
Sussman says his client’s health has deteriorated to the point that he has to sleep upright and struggles to carry the oxygenator that helps him breathe.
“My client is 65 years old. Both his heart and lungs are in terrible shape. He can barely walk,” Sussman said. “The prosecution says that we should only look at his record and the nature of his offense and ignore the fact that he can’t physically make it from one end of his pod to the next, and that he is a very grave health risk.
“That’s just not a credible public safety argument.”
Whitney expects to rule on the case in the fall.
This story was originally published August 27, 2021 at 6:45 AM with the headline "Inmates seeking release from COVID-hit prisons have next to no chance in this NC district."
