Groups and relatives advocating for the release of prisoners at risk from the virus say they don’t begrudge well-connected people achieving that goal. The problem, they said, is that many other people who could meet Barr’s criteria languish in prison, without legal help, unable to understand the complex process or lacking connections to help them as the pandemic spreads. As of Wednesday, the official tally had 59 federal prisoners dying from COVID-19 and more than 4,600 testing positive, though health experts believe that’s almost certainly an undercount.
Melissa Ketter, a Minnesota woman whose daughter has served just over half of her sentence for a federal nonviolent drug crime, said she almost cried when she heard about Cohen’s release.
"I'm happy for him don’t get me wrong — but at the same time it was like, the rich white guy gets out early. I don’t wish for bad things to happen to these people, but it’s like can everybody be treated the same?" Ketter said.
The release process has been marked by foot-dragging and confusion, critics say, and a federal judge in a ruling Tuesday labeled the results “paltry.”
The Bureau of Prisons won’t release data, won’t answer questions and keeps shifting policy on who qualifies for release, according to Georgetown Law professor Shon Hopwood, an expert on criminal justice reform.
“The Bureau of Prisons is operating all behind closed doors, and that’s a big part of the problem,” Hopwood said.
Lawyers for Cohen and Manafort did not return messages seeking comment.
The Bureau of Prisons and the Department of Justice declined to comment about the release process and specific cases. The bureau has said it prioritizes prisoners who have served at least 50 percent of their sentences, or who have 18 months or less left and have served 25 percent of their sentences, but that is not an iron-clad requirement. The time-served threshold was not mentioned in Barr’s two memos.
There are two routes for at-risk federal prisoners seeking to escape the virus: finishing their sentence at home, known as “home confinement,” or being let out on “compassionate release.” The key distinction is that the Bureau of Prisons alone determines who goes to home confinement, with no appeal process. Prisoners can ask a judge for compassionate release.
Cohen and Manafort are hardly the only politically connected people to be released despite apparently not fully meeting the federal criteria. Former U.S. Rep. Corrine Brown, of Florida, who was convicted of fraud, was released last month, short of the halfway mark in her sentence. She also had a lawyer working on her behalf, who emphasized her numerous health issues in seeking her release. Brown’s lawyer declined to comment.
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The tally on people in home confinement and other federal prison data, obtained from the Bureau of Prisons and Congress, did not itemize how many people finished their sentences in the last seven weeks and are no longer included in the count. It also did not specify how many prison-to-home transfers were approved by the bureau, as was the case with Manafort and Cohen, and how many were ordered by judges — many over objections from federal prosecutors, despite Barr’s order.
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The total population in federal custody has gone down by about 10,800 people since April 2, the data show. That includes emergency releases. But it also includes people whose sentences were set to end during the past seven weeks, a figure the bureau on Thursday put at about 7,600. The data did not specify how many new prisoners the bureau accepted.
The population in halfway houses, the less-restrictive facilities where federal prisoners generally serve the last six months of their sentences, dropped by almost 1,300, a decrease of 17 percent since April 2. That still left about 6,100 other people in halfway houses as of Thursday, bureau data show. Because these prisoners have generally less than six months to serve in their sentences, advocates say they could be released to avoid risks where many cannot sufficiently maintain social distance.
The Bureau of Prisons’ results so far prompted a federal judge this week to order a review of medically vulnerable people housed in a prison in Elkton, Ohio, where officials reported nine deaths from the coronavirus. U.S. District Court Judge James Gwin last month had ordered officials to give him a list of those over age 65 or with significant health conditions.
The bureau told him 837 men met that criteria, but that only five would be sent home and six more may qualify. In the often-dry language of court rulings, Gwin gave prison officials the equivalent of a tongue lashing.
“Against a backdrop where approximately one out of every four Elkton inmates have tested positive for COVID-19, the respondent must move inmates out. By thumbing their nose at their authority to authorize home confinement, the respondents threaten staff and they threaten low security inmates,” the judge wrote, referring to the Bureau of Prisons as the respondent.
Gwin gave the bureau until this Monday, Memorial Day, to provide detailed reasons for each denial to the other 826 prisoners, and to other medically vulnerable Elkton prisoners the agency did not include on the list. On Wednesday, the bureau asked the U.S. Supreme Court to pause the case pending an appeal.
From the start, the bureau has given confusing signals about how it’s evaluating prisoners for release, changing its official guidance a few times.
Prisoners previously had to finish 90 percent of their sentence before they could be sent to home confinement. But the relief law Congress passed in March gave the attorney general broad powers to release prisoners during the pandemic. That process is internal, with the Bureau of Prisons able to select people for release and prisoners able to request release. But if bureau officials deny a request for home confinement, a prisoner can’t appeal.
By contrast, compassionate release allows prisoners to ask a federal judge for release if they show “extraordinary and compelling” reasons under the 2018 First Step Act. But many prisoners lack the education or skills to navigate the courts, and successful attempts usually require a lawyer.
The latest figures show that since early April, 268 prisoners nationwide received compassionate release. Since Trump signed the law in 2018, only 144 people had been granted such release before April 2, bureau data show.
The Department of Justice has been fighting many coronavirus-related requests for compassionate release in court, according to records and advocates monitoring the process. In a case decided this week, government lawyers called compassionate release a “Get Out of Jail Free Card” and referred to the pandemic as “a red herring.”
Instead, the Bureau of Prisons is starting to put people in home confinement, but slowly, according to Kevin Ring, president of FAMM, a national criminal justice advocacy group.
“I think the mass effort we’re putting into compassionate release is forcing them to designate more people for home confinement because I think they’d rather have these people in home confinement than completely released,” he said of federal officials. “It feels totally contradictory — you’re saying that ‘we’re doing everything we can to get people out of harm’s way,’ but you have this tool that you’re not using at all.”
But when federal officials rely on home confinement, as opposed to compassionate release, they effectively eliminate from the process thousands of medically vulnerable or aging prisoners who are not considered "minimum" risk, Ring said. That’s because to determine whether someone can be sent home, the bureau uses a tool to assess their risk of committing a crime after release, a tool that has been shown to favor white prisoners.
The federal risk assessment tool has blocked the release of prisoners like Eddie Brown, the Oklahoma man serving his sentence in Tennessee. Brown, 47, has hepatitis C and has done everything possible to better himself in prison, earning a welding certificate, taking plumbing and parenting classes, and completing a 500-hour substance abuse program, his daughter said.
Prison officials even trust him to drive fellow prisoners, without an officer’s escort, to a factory where Brown is the chief welder, Bolding, his daughter, said. In January, two officers drove him from the prison in Tennessee to Oklahoma so Brown could renew his commercial driver’s license, she said.
The risk assessment tool, which assigns prisoners points, left Brown just shy of the threshold officials are using, because his three previous felony convictions on state drug-related charges outweighed the points he earned for good behavior in prison, according to bureau documents provided by Bolding. So the bureau is not letting her father go home, even as he fears his health condition puts him at higher risk of developing complications from the virus.
“He has something beneficial for the Bureau of Prisons,” Bolding said, referring to her father’s driving job. “That’s why they aren’t releasing him.”
If released, Brown has a standing job offer from Tommy Bruton at TJ Inspection Inc., an oil and gas servicing company based in Oklahoma City.
“It blows my mind that he got locked up for so long,” said Bruton, a friend of Brown’s. “He ain’t a danger to society.”
For some prisoners, the entire process — and the shifting requirements for release — are so confusing they aren’t even trying.
That has been the case for Catherine Crotts, at the Coleman federal prison camp in central Florida, the same minimum-security unit hit by an outbreak of Legionnaires disease last year. Crotts, 45, said she uses a wheelchair because of injuries and has untreated hepatitis C. By day, she said, she works driving other prisoners to their jobs around the sprawling compound.
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