Excerpted From: Mariah D. Haley, Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the Covid-19 Pandemic and Vaccine, 122 Columbia Law Review 1997 (November, 2022) (213 Footnotes) (Full Document)


MariahHaleyOur social distancing took effect with the jury's verdict,” wrote Derek Trumbo, who was incarcerated in Burgin, Kentucky during the height of the COVID-19 breakout in 2020. While many of those incarcerated have felt socially distant from their loved ones since well before the coronavirus pandemic, their ability to physically distance themselves from others--namely, others incarcerated and corrections officers--substantially decreased once behind prison bars. Since the beginning of the pandemic, there have been more than 613,433 cases of COVID-19 in U.S. prisons. During that same period, more than 2,663 incarcerated persons have died from COVID-19. Also during that time period, approximately 31,000 individuals applied for compassionate release; only about thirty-six of those requests were granted directly by the Bureau of Prisons (BOP). Throughout the pandemic, dozens of articles on prison conditions were published, putting the horrors occurring behind bars on full display. These articles encouraged the American public to consider the pandemic from the perspective of those incarcerated and to ruminate on new questions: How does one practice safe handwashing protocols when soap is unavailable and hand sanitizer is banned? How does one practice social distancing, as recommended by the Centers for Disease Control and Prevention (CDC), when confined to a building that has more people incarcerated than it was designed to hold? The pandemic-era situation within American jails has been aptly described as “lethally systemic.” In the prison where Mr. Trumbo was incarcerated, an outbreak of coronavirus resulted in more than 65% of the population of 1,200 individuals testing positive at once. While options for protection from the coronavirus within prison walls were limited, those incarcerated turned to another strategy in attempting to avoid the virus: release from prison.

Compassionate release, also known as the BOP's reduction-insentence program, was born out of the Sentencing Reform Act of 1984 (SRA). It allowed the BOP to petition district courts to modify individuals' original sentences if certain “extraordinary and compelling” reasons existed. Today, as a result of the FIRST STEP Act of 2018, judges play a larger role in reviewing and releasing individuals. The Act revitalized the compassionate release program by enabling courts to directly grant a request for release after finding: (1) that the defendant has exhausted his or her administrative remedies or waited thirty days from the date of original request; (2) that extraordinary and compelling reasons exist to warrant reduction; (3) that the defendant is not a danger to the community; and (4) that the reduction is consistent with the sentencing factors found in 18 U.S.C. § 3553(a)--the statute on “[i]mposition of a sentence.” Theoretically, this policy might seem like the perfect avenue for an individual in prison to find COVID-19 related relief, especially so for an individual with comorbidities, or preexisting conditions that make one more likely to become very ill with COVID-19. In practice, however, as of the summer of 2021, only 3,221 people had been released from prison through compassionate release since the beginning of the pandemic. The advent of COVID-19 vaccines led to even fewer approvals of compassionate release requests, with courts often finding that the extraordinary and compelling prong of the aforementioned test could not be met.

Courts' decisions are not uniform, however. Incarcerated persons continue to have vastly different outcomes depending on where they are located. For example, Evelyn Cecilia Bozon Pappa's life sentence-- which began in 1997--was reduced to time served in 2021 after a grant of compassionate release. Despite Bozon Pappa's full vaccination against COVID-19, the court correctly recognized that her preexisting conditions-- obesity and hypertension--meant that the vaccine may not be completely effective in protecting her. The court cited a previous decision in the Western District of Washington, which held that “vaccination during the pendency of the Motion for Compassionate Release ... should not, and does not, in some way trump the Court's consideration of the motion.” At the same time, other courts have reached the opposite conclusion, holding, for example, that “[a]lthough Defendant suffers from several chronic medical conditions, his vaccination significantly mitigates the risk that he will contract COVID-19.” And, as such, “Defendant has not met his burden to demonstrate 'extraordinary and compelling reasons' warranting compassionate release.” The differences in the underlying circumstances between these two cases are important to consider. A court might reasonably reach different conclusions on the two cases based on different factors. The issue that this Note raises, however, is that courts reach inconsistent conclusions on the same issue--vaccination status and preexisting conditions-- regardless of other case-specific factors. This Note questions whether it is reasonable for federal courts to reach such different holdings and whether those outcomes are in line with the spirit of the compassionate release policy.

Part I of this Note explores the history of compassionate release, its intended purpose, and the ways in which the compassionate release doctrine has evolved over time. It also examines how compassionate release has served its purpose, albeit in a limited way, during the pandemic. Part II introduces the pandemic-specific compassionate release issues that have emerged: namely, the discrepancy among courts in “weighing” various factors, including preexisting conditions, vaccination status, and prior infection with COVID-19; and courts' reliance on both positive and negative vaccination status as a factor weighing against the granting of compassionate release. Some circuits continue to maintain that an individual's positive vaccination status is, in effect, a complete bar to an extraordinary and compelling showing; other courts choose to release vaccinated individuals based on the risk of exposure to COVID-19. In Part III, this Note argues that an individual in federal custody should be just as likely to be granted compassionate release in California or in Texas, in Montana or in Arizona. Having received the vaccination against COVID-19 should not be the reason that one individual is forced to stay in prison, while, at the same time, not having received the vaccine also keeps another individual behind bars. This Note concludes by examining the implications of the federal judiciary's scattershot approach to compassionate release during the pandemic and offers a solution--a matrix to be promulgated by the United States Sentencing Commission (USSC)--to standardize the process moving forward.

[. . .]

Courts continue to rule on incarcerated individuals' compassionate release requests every day. With the ongoing impact of the coronavirus, and the variants to come, it is crucial to protect vulnerable populations, incarcerated and otherwise. The implementation of a more effective, evidenced-based compassionate release program will not only reduce the spread of COVID-19 in prisons but will also have a direct impact on decreasing the number of COVID-19 cases in the general public. Until recently, courts had not had the opportunity to revisit the “extraordinary and compelling” standard, with the added context of the FIRST STEP Act and a pandemic. As such, courts currently do not have the tools necessary to make informed, consistent decisions on compassionate release requests. Methods, attitudes, and policies enacted by the criminal justice system during this pandemic will have lasting effects in viral outbreaks to come. More importantly, the federal judiciary's adoption of a more compassionate attitude toward actually granting compassionate release will reduce the number of individuals incarcerated.

The imprisoned population in the United States continues to be extremely vulnerable to contracting COVID-19. As new variants continue to arise, and the pandemic rages on, those in prison are more vulnerable than ever to the ever-changing virus. In light of that vulnerability, and the BOP's lack of regard thereof, it is incumbent on courts to grant compassionate release in a fair, equitable, and compassionate manner. The federal courts have adopted a scattershot approach to compassionate release requests throughout the pandemic thus far; this approach demonstrates that the courts need additional guidance in determining when to grant compassionate release.

J.D. Candidate 2023, Columbia Law School.