The Federal Defenders of New York is in the middle of a desperate fight over the timing and extent of federal prisoner releases spurred by the threat of the coronavirus. By the end of last week, only about 1,000 prisoners—a tiny fraction of those eligible for early release—were sent home from federal prisons. This was even after Attorney General William Barr issued a memo earlier this month ordering Bureau of Prisons officials to “immediately maximize” the release of those vulnerable to the virus.
David Patton, the executive director of the independent nonprofit organization that offers legal defense for indigent defendants and incarcerated people, says the chaos and confusion at the Justice Department got so bad last week that BOP officials told prisoners they were going home only to rescind that promise while family members were en route to prisons to pick up their loved ones. Those folks, furious and frustrated, anxious and afraid, were forced to turn around and go home.
BOP has at the very least sent mixed signals about release conditions as the number of COVID-19 deaths in federal prisons has risen, and the bureau has tried to play catch-up by, among other things, ramping up its testing of federal prisoners. First the feds said they would consider early release for a wide range of prisoners, even those who had served less than half the length of their sentences. Then they reversed that policy and said they would only consider early release for prisoners who had served at least 50 percent of their sentences.
Then toward the end of last week, after a public outcry and more grim coverage of rising infection rates in prisons in Louisiana and Ohio, the feds appeared to reverse that policy yet again. Patton and his organization, and countless other defense attorneys across the country representing federal prisoners, have been trying to maneuver through these cycles as their increasingly desperate clients face the risk of infection and death. Patton walked me through what Federal Defenders of New York is seeing on the ground during an email interview. This conversation has been edited and condensed for clarity.
Andrew Cohen: What was last week like for you as a federal defender? What details and policies and explanations and justifications are you seeing from federal prosecutors and wardens and other officials in the cases you are handling and supervising?
David Patton: I’ve been a public defender for nearly 20 years. Many of our lawyers have been public defenders for longer. We’re experienced at seeing and struggling against a certain brutality in the system. But even with that as a baseline, the response by prosecutors and prison officials to COVID-19 has been hard to fathom. I don’t know how to describe their behavior other than to say it’s cruel. And even for those of us who are experienced at seeing cruelty, it’s been hard to take.
Take this latest example. The BOP told people that they were going home. These are people who have been imprisoned under the harshest of circumstances. They are locked down nearly 24/7. They are living in perpetual fear that they may contract a deadly disease and die in prison away from their family and loved ones. When they are able to talk to our lawyers, our lawyers have emotional, difficult discussions with them about their limited options.
In the midst of all that anxiety and terror, a BOP official tells them: We’re doing the right thing. You’re going home. Here, sign the paperwork. Your nightmare is over. Our clients tell their families. Our clients tell us. It’s a miracle. I may just make it out of here. The families are ecstatic. Spouses and children and parents celebrate and make plans to pick up their loved ones. Our lawyers are thrilled: a rare bright spot in an ocean of misery. And then … a few days later … Never mind. We’ve actually decided to change our criteria. We’ve decided you’re not going home after all. Just sit back down in that cell.
For more than a month now, prosecutors have been opposing our bail and compassionate release petitions on the most callous grounds: Our clients are better off in jail and prison than out. “Look at the low number of positive test results, judge. They are safer inside.” Never mind that there’s an infinitesimal amount of testing happening. At the Metropolitan Detention Center and Metropolitan Correctional Center where roughly 2,400 people are detained, a mere 19 had been tested (as of April 23). Prosecutors know that. And yet they make their arguments [for continued detention]. A third of the incarcerated people at the MCC and MDC—roughly 800 people—are highly vulnerable to severe effects of COVID-19 due to age or medical condition. That’s according to the BOP itself. And yet, prosecutors make their arguments.
Worse still, they have touted BOP’s home confinement program as a reason to deny compassionate release. I’m sure you’re familiar with District Judge Ronnie Abrams calling them out and asking why she shouldn’t find that BOP was acting in bad faith in shifting their criteria. To which prosecutors asked for more time because of “ongoing uncertainty surrounding the home-confinement eligibility criteria.” Uncertainty regarding the criteria? Seriously? We’re two months into this crisis. It’s been a month since Patrick Jones became the first person in BOP custody to die. Twenty-four others have died since. They can’t be bothered to establish knowable criteria and act on those criteria quickly?
Where do things stand as we head into a new week? Was it easier Friday to gain traction in getting some of your clients out or more of the same? And give me a sense of who these clients are? What makes them candidates for early release under the memo from the attorney general?
I know of at least one client who received compassionate release on Friday—and was in fact released on Friday—because the judge finally had enough of the government’s dissembling. But that was over the prosecutors’ objection.
Then there is Desi Glenn. He’s at the MDC. Mr. Glenn is a 62-year-old Vietnam veteran (he served from 1973 to 1976, when he was honorably discharged). He has well-documented (by the VA), severe medical (chronic obstructive pulmonary disease, hepatitis, diabetes) and mental health (PTSD, bipolar, cognitive disorders, depression) issues. He frequently had to use an oxygen tank when he was in the community because his COPD was so bad. He is serving a nine-month sentence for selling $20 worth of heroin to another vet outside the VA hospital in Coatesville, Pennsylvania, and has about three months left to go. His lawyer requested that he be considered by the warden of MDC for compassionate release and home confinement. No response at all.
Tell me a little about your discussions with prison officials, with wardens. Do you get the sense that they are caught in the middle and want to release more prisoners than they so far have released? I am trying to understand where and why there seems to be a disconnect between Barr’s memo—”immediately maximize” release—and the fact that there haven’t been as many releases as people expected.
I like that you think the wardens talk to us. We occasionally speak with them in meetings with various courthouse actors, but they do not otherwise talk to us or explain their (in)actions. But in my opinion, this isn’t a warden problem. The criteria and roadblocks are coming from the attorney general and the director of BOP. If they wanted clear criteria to move people out expeditiously, they could just order it. The AG continues to speak out of both sides of his mouth. He wants the public to think DOJ is taking swift action when in fact they are obstructing responsible release at every turn.
As for what BOP can do, there is very little they can do without releasing a significant number of people. The overcrowding makes any sort of real or humane solution impossible. Can they do things better even in light of overcrowded facilities? Yes. They could implement widespread testing. They could provide real protective gear for everyone, including staff. They could do much better at sanitizing and creating hygienic conditions.