coronavirus

Trump administration reverses prisoner coronavirus release policy, advocates say

On Monday, some prisoners were told that officials were no longer considering early releases for inmates who have served less than half their sentence.

Federal prison

A coronavirus-related policy shift that could have cleared the way for thousands of federal prisoners to be sent home early was abruptly reversed this week, according to friends and family members of inmates.

Prison officials indicated earlier this month that inmates who had served less than half their sentences could still be considered for early release to limit the spread of infection behind bars. However, inmates in various prisons who had been put into prerelease quarantine almost two weeks ago were advised Monday by authorities that the policy had changed, lawyers and associates said. Officials would not waive a requirement that prisoners must have completed 50 percent their sentence to be eligible for early release during the pandemic, the inmates were told.

A federal prosecutor in New York also confirmed the shift to a court Tuesday, drawing the ire of a judge for contradicting the position the government took just three days earlier.

However, shortly after this article was published Tuesday, a Justice Department spokesman suggested yet another course correction and indicated that officials at the Bureau of Prisons were confused or given inaccurate guidance about previous directives from Attorney General William Barr.

"The Department confirmed to BOP this afternoon that the BOP has discretion under the Attorney General's Memoranda on March 26 and April 3 regarding which home confinement cases are appropriate for review in order to fight the spread of the pandemic," the Justice Department statement said. "BOP will proceed expeditiously consistent with that confirmation."

The reversal reported by inmates to their families and lawyers on Monday could have dashed the hopes of several well-known prisoners seeking release from federal custody, including former Trump campaign chairman Paul Manafort and former Trump personal lawyer Michael Cohen. Neither man has served half his sentence.

According to Manafort’s lawyer, Manafort was put into prerelease quarantine at a prison in Loretto, Pa., on March 30. Such quarantines typically last two weeks, but Manafort has not yet been released. He has served about 22 months of a 7½-year sentence.

Cohen’s lawyer told reporters last week that Cohen had been approved for home confinement, but needed to go through a quarantine. Cohen has served about 11 months of a three-year sentence.

Bureau of Prisons spokespeople did not respond to requests for comment for this report.

Barr ordered federal prisons to increase their use of home confinement on March 26 to lower risks associated with the virus. Some of the worst outbreaks in the country have occurred in close-quarters prisons, which cannot easily adhere to social-distancing guidelines.

On April 3, Barr used authority under the newly passed CARES Act to declare an emergency at prisons seriously impacted by Covid-19, the disease that develops from the novel coronavirus. The move waived the usual cap limiting home confinement to no more than six months at the end of an inmate’s sentence.

While the initial set of criteria for home confinement included a requirement that inmates had completed half of their sentences, prison officials were told by their superiors on April 9 that rule was expected to be dropped. The decision was cited in a declaration a Bureau of Prisons staffer submitted in connection with a lawsuit challenging the detention of inmates at a federal prison complex in Oakdale, La., that has suffered a serious outbreak of the virus.

That guidance led prisoners at a number of federal facilities nationwide to be put into prerelease quarantine around that date, according to family members of inmates. Some family and friends were making plans to pick up their loved ones this week. Others had purchased air tickets to return home, only to be told Monday that the expected releases had been scuttled.

“They just posted a new BOP Bulletin a few minutes ago, reversing the Barr decision and requiring that those released to home confinement must have served 50% of their sentence,” Stephen Donaldson, son of an inmate at a prison in Georgia, wrote in an email to POLITICO. “I was hoping to have my father home. He tells me a number of other inmates had started the quarantine pre release and then were told of the reversal.”

“I got a call from my wife today in tears because they put her back into the general population and last week they moved her into a quarantine room to prepare for home confinement,” Josh Sorenson wrote on Twitter. “I’m a medical provider. COVID-19 doesn’t care if you have served 25% or 50% of your sentence.”

One advocate for inmates complained Tuesday that inconsistent information and a lack of transparency from the Bureau of Prisons were creating an emotional roller coaster for inmates and their families already on edge about the perils posed by the virus.

“I find myself baffled at the ineptness, if not the downright cruelty displayed by the BOP,” Kevin Ring of sentencing reform group FAMM, formerly known as Families Against Mandatory Minimums, wrote in a letter to Barr and BOP Director Michael Carvajal. “To have the promise of early release snatched away under these circumstances is simply inexcusable. ... Transparency would go a long way to allaying confusion and fear.”

In the case that riled up a judge in New York, Assistant U.S. Attorney Olga Zverovich wrote to the court Tuesday to reverse the government's confirmation just three days earlier that Lewis Stahl — who pleaded guilty in 2018 to tax evasion — was eligible for home confinement.

"The Bureau of Prisons ... advised the Government this afternoon that the Department of Justice (“DOJ”) has just issued new guidance to the BOP requiring that an inmate serve at least fifty percent of his or her sentence in order to be eligible for placement on home confinement," Zverovich wrote, adding that Stahl not longer met the criteria for the program. Her letter was first reported by Forbes.

The confusion appeared to anger U.S. District Court Judge Ronnie Abrams, who demanded answers.

"The Government is hereby directed to provide the Court with an explanation from the BOP, including by way of affidavit from the appropriate representative, as to how the new DOJ guidance can affect these prior decisions," wrote Abrams, an appointee of President Barack Obama. The judge also told prosecutors to put the new DOJ guidance on the record in the court docket by 5 p.m. Wednesday.

Despite the apparent flip-flops on eligibility, federal officials have significantly ramped up the use of home confinement in the past few weeks as the coronavirus pandemic intensified in the U.S. After Barr’s first directive on the subject last month, 1,362 inmates were moved to house arrest, according to an update Tuesday on the BOP website.

It was not immediately clear how the latest clarification to Justice Department policy would be implemented, including the question of whether inmates already put into and out of quarantine would now be released without undergoing another 14-day period of isolation.

Some prisoners whose requests for home confinement have been rejected by the Bureau of Prisons can seek release from officials or a judge under separate "compassionate release" program, but the numbers released under that mechanism have been smaller.

As of Tuesday evening, there was no indication that government lawyers had advised the federal court in Georgia that the early release criteria have changed from those described in the declaration filed on April 10.

Official statistics issued Tuesday show 540 federal inmates and 323 staff with confirmed cases of the virus, with 23 prisoners having died after contracting Covid-19. The prison complex in Yazoo City, Miss., has the most reported inmate infections at 76, but the prison in Lisbon, Ohio, has the highest number of overall cases: 98 among prisoners and staff.

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