Page v. United States ( 2021 )

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District of Columbia
Court of Appeals
No. 21-CO-167
DON D. PAGE,
Appellant,
v. 2013 CF1 12342
UNITED STATES,
Appellee.
BEFORE: Thompson and Easterly,* Associate Judges, and Washington, Senior
Judge.
PUBLISHED JUDGMENT
(FILED—July 22, 2021)
On consideration of appellant’s motion for summary reversal, appellee’s
opposition and cross-motion for summary affirmance, appellee’s motion to file its
lodged appendix under seal, appellant’s motion for an extension of time to file his
lodged opposition, and the record on appeal, it is
ORDERED that appellee’s motion to file its appendix under seal is granted
and the Clerk shall file and seal appellee’s lodged appendix. It is
FURTHER ORDERED that appellant’s motion for an extension of time to file
his opposition is granted and the lodged opposition is filed. It is
FURTHER ORDERED that appellant’s motion for summary reversal is
denied. See Watson v. United States, 73 A.3d 130, 131 (D.C. 2013). It is
FURTHER ORDERED that appellee’s cross-motion for summary affirmance
is granted. See id. Appellant, who is 30 years old and has served about half of the
14-year sentence the trial court imposed after his guilty plea to second-degree
2
No. 21-CO-167
murder, challenges the trial court’s denial of his motion, filed pursuant to D.C. Code
§ 24-403.04 (2020 Repl.), for compassionate release. A supplement to appellant’s
October 2020 motion advised the court that appellant tested positive for COVID-19
in December 2020 but has since recovered. The court found after an evidentiary
hearing and based on guidance from the Centers for Disease Control and Prevention
(CDC) that although appellant’s medical conditions (his COVID-19 history and its
lingering effects, his moderate-to-severe asthma, and his history of smoking)
increase his risk of severe consequences should he be reinfected with COVID-19
illness, cases of reinfection are “rare” and there is a “relatively low risk” that
appellant will become reinfected. The court also cited the falling COVID-19
infections rates at the facility where appellant is incarcerated and the facility’s
progress on vaccinating staff and inmates, and found that there was “every reason to
believe” that appellant would soon receive the COVID-19 vaccination, alleviating
the risk that COVID-19 poses to his health.1 The court therefore concluded that
appellant had not shown an extraordinary and compelling reason for release. The
court did not reach the issue of whether appellant is “a danger to the safety of any
other person or the community.” D.C. Code § 24-403.04(a).
Under D.C. Code § 24-403.04(a), an individual who does not meet the
specific criteria for eligibility spelled out in the statute can establish eligibility for
release by showing that “[o]ther extraordinary and compelling reasons warrant a
[sentence] modification.” Appellant first argues that the trial court wrongly required
him to establish a likelihood of infection in order to establish an extraordinary and
compelling reason for release. We disagree. While appellant is correct that the
statute does not specifically require an applicant for compassionate release to
establish a likelihood of infection, information regarding appellant’s risk of
reinfection was relevant to the trial court’s determination of whether his proffered
reason for release — medical conditions that made him more susceptible to severe
COVID-19 — constituted an “extraordinary and compelling” reason warranting a
sentence modification. The legislative history shows that the Council of the District
of Columbia intended for trial courts to exercise “appropriate discretion to review
the compelling facts of a case,” Committee on the Judiciary & Pub. Safety, Council
1
The court cited in addition the reasoning of “multiple federal courts” that
“the fact that an inmate has had and recovered from COVID-19 cuts against a claim
of extraordinary and compelling reasons for release.”
3
No. 21-CO-167
of the District of Columbia, Report on Bill No. 23-127 (“Committee Report”) at
28-29 (Nov. 23, 2020), and thus afforded them discretion to consider any reasonable
factor that directly impacts on the determination of whether an applicant is “at risk
of severe illness or death from COVID-19.” We are satisfied that the trial court did
not err in taking into account the likelihood of reinfection by COVID-19 in
determining whether appellant demonstrated “extraordinary and compelling
reasons” for compassionate release. See Committee Report at 28 n.118 (citing with
approval a Superior Court order which the Council characterized as granting
compassionate release on the ground that the prisoner’s “medical conditions placed
him at an increased risk of contracting COVID-19 and of suffering severe illness
from it”).
Appellant also argues that the trial court lacked a firm factual foundation to
determine that he had a low risk of reinfection. Upon review of the record, we
conclude that the trial court did not err in finding that appellant had a low risk. His
expert witness, emergency physician Ronald Paynter, testified upon a review of
appellant’s medical records that appellant’s risk of reinfection was lower than his
initial risk of infection and that vaccination would also lessen the risk of reinfection.
That testimony, along with the CDC guidance about the “rare” risk of reinfection,
the availability of vaccinations, and the low number of infections at appellant’s
correctional facility as of the date of the trial court’s ruling, supported the court’s
conclusion that appellant had a low risk of reinfection. Cf., e.g., United States v.
Alford, No. 08-374, 2021 U.S. Dist. LEXIS 76509, at *16-20 (W.D. Pa. April 21,
2021) (denying compassionate release to an applicant with hypertension, obesity,
prediabetes, and a history of smoking who had previously contracted COVID-19 and
was housed in a facility with only one active case); United States v. Dinehdeal, No.
3:16-CR-30107-RAL, 2021 U.S. Dist. LEXIS 55832, at *8-13 (D.S.D. March 24,
2021) (acknowledging that Dinehdeal’s obesity and type 2 diabetes increased his
risk of severe illness from COVID-19, but focusing on the “pertinent inquiry” of
whether Dinehdeal was at risk for reinfection of COVID-19; noting that CDC
guidance, other medical resources, and the developing body of scientific research
indicated that reinfection was rare and, if it did occur, the outcome was likely to be
less severe; noting that Dinehdeal’s correctional facility had zero active COVID-19
cases among inmates, four active COVID-19 cases among staff, and few deaths from
COVID-19; citing the Bureau of Prisons (BOP) implementation of a vaccination
4
No. 21-CO-167
program; and concluding for those reasons that Dinehdeal had not established an
extraordinary and compelling reason for release).2 While the trial court did not
address the impact of COVID-19 variants or incarceration on the vaccine’s ability
to prevent reinfection, appellant did not elicit any testimony from his expert
regarding those issues. It may remain to be seen how the availability of vaccines
should be evaluated where large numbers of staff or inmates have declined
vaccinations or where COVID-19 variants are in increasing circulation, but based
on the evidence that was before the trial court, we are unable to say that the court
abused its discretion in concluding that appellant failed to show an extraordinary and
compelling case for his release.
While appellant argues that the CDC’s guidance had not been updated, his
own expert’s testimony did not contradict the guidance. Additionally, appellant
argues that the trial court erred in relying on information concerning vaccination
efforts by the BOP. The court primarily relied on the vaccination information on the
BOP’s public coronavirus website, which appellant also cited in his filings when
2
See also, e.g., United States v. Morrison, No. 5:10-CR-00025-KDB-DCK-1,
2021 U.S. Dist. LEXIS 108588, at *7-8 (D.N.C. June 10, 2021) (agreeing that the
defendant “cannot meet his burden of establishing that his risk of contracting
COVID-19 is an extraordinary and compelling reason for a sentence reduction when
he has already contracted—and beaten—the virus”); United States v. Jenkins, No.
4:15-cr-00016-SEB-VTW-01, 2021 U.S. Dist. LEXIS 31174, at *10 (S.D. Ind. Feb.
19, 2021) (court “has declined to find extraordinary and compelling circumstances
warranting a sentence reduction when a defendant has recovered from COVID-19,”
“even when that defendant has risk factors for severe symptoms”; “fact that the BOP
is now actively vaccinating inmates against COVID-19 . . . only underscores the
speculative nature of any concern about reinfection”); United States v. Hilliard, No.
17-CR-35-01 (VB), 2021 U.S. Dist. LEXIS 29785, at *3 (S.D.N.Y. Feb. 17, 2021)
(where defendant had already recovered from COVID-19 and risk of reinfection was
low, “sentence reduction based on the risk of contracting the virus again ma[d]e[ ]
no sense”); United States v. Marley, No. 16-CR-374 (VEC), 2020 U.S. Dist. LEXIS
244692, at *9 (S.D.N.Y. Dec. 30, 2020) (“defendant’s successful recovery from
COVID19 weighs against granting . . . compassionate release,” and “[w]ith the
vaccine rollout underway in the United States, the Court anticipates that Mr. Marley
will receive a vaccine well in advance of his becoming susceptible to reinfection”).
5
No. 21-CO-167
providing updated case numbers, and it was entitled to do so. See In re Estate of
Barfield, 736 A.2d 991, 995 n.7 (D.C. 1999) (explaining that the trial court is entitled
to take judicial notice of matters of public record). It is
FURTHER ORDERED and ADJUDGED that the order on appeal is affirmed.
ENTERED BY DIRECTION OF THE COURT:
JULIO A. CASTILLO
Clerk of the Court
* EASTERLY, Associate Judge: After considering medical records and
expert testimony presented by Mr. Page, who fell ill from COVID-19 while his
motion for compassionate release was pending, the Superior Court determined that
“Mr. Page’s medical conditions increase his risk of severe disease if he contracts the
coronavirus again.” Even so, the court determined Mr. Page had not established an
extraordinary and compelling reason to make himself eligible for a sentence
reduction under D.C. Code § 24-403.04(a)(3) (2021 Supp.), because he had not
shown that he was likely to be reinfected while in prison.3 The Superior Court was
wrong to require Mr. Page to make such an additional showing. The compassionate
release statute, which was enacted in response to the ongoing COVID-19 pandemic,
contains no textual foundation for requiring prisoners to show that they are likely to
be infected with COVID-19 while in a congregate, carceral setting. And the
legislative history refutes the notion that the Council of the District of Columbia
intended to restrict access to compassionate release in this manner. It reveals instead
that the Council presupposed a likelihood of infection with COVID-19 for all D.C.
prisoners (who are housed in federal prisons all over the United States) and was
singularly concerned about the consequence of infection—specifically, the
3
Having concluded that Mr. Page was ineligible for a sentence reduction on
this basis, the Superior Court did not reach the second statutory requirement that Mr.
Page prove, by a preponderance of evidence, see Bailey v. United States, 251 A.3d
724 (D.C. 2021), that he is not presently dangerous, see D.C. Code § 24-403.04(a).
6
No. 21-CO-167
possibility that individuals serving terms of imprisonment would inadvertently
suffer a harsher punishment of severe illness or even death because of their
vulnerability to the disease. The majority thus affirms a misreading of the statute
and oversteps its bounds by erecting an additional barrier to compassionate release
in contravention of the will of the Council.
Between March 11 and March 13, 2020, the World Health Organization
declared COVID-19 a global pandemic, 4 the President of the United States declared
a national emergency, 5 and the Mayor of the District of Columbia declared a public
health emergency in D.C. 6 A month later, on April 10, 2020, the Council of the
District of Columbia passed emergency legislation that, among other things,
authorized Superior Court judges to grant compassionate release to D.C. prisoners
who faced serious risk of severe illness or death from COVID-19.7 In the months
that followed, the Council renewed this authority in emergency and temporary
legislation. 8 And at the end of December 2020, the Council passed permanent
legislation that largely mirrored the preceding emergency and temporary
4
Timeline: WHO’s COVID-19 Response, World Health Org.,
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/interactive-
timeline https://perma.cc/Y4T7-AWSK (last visited July 6, 2021).
5
Declaring a National Emergency Concerning the Novel Coronavirus Disease
(COVID-19) Outbreak, 85 Fed. Reg. 15,337 (Mar. 18, 2020). The Secretary of
Health and Human Services had already declared a Public Health Emergency under
the Public Health Service Act for the COVID-19 pandemic. Determination that a
Public Health Emergency Exists Nationwide as the Result of the 2019 Novel
Coronavirus, U.S. Dep’t of Health & Human Servs. (Jan. 31, 2020),
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx
https://perma.cc/ZWC3-H78C.
6
Mayor’s Order 2020-45: Declaration of Public Health Emergency –
Coronavirus (COVID-19), Exec. Off. of the Mayor (Mar. 11, 2020),
https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachme
nts/MO.DeclarationofPublicEmergency03.11.20.pdf https://perma.cc/TL7Y-
2BMP.
7
D.C. Act 23-286 § 305, 67 D.C. Reg. 4178 (Apr. 10, 2020).
8
See D.C. Act 23-326 § 706, 67 D.C. Reg. 7045 (May 27, 2020); D.C. Act
23-328 § 706, 67 D.C. Reg. 7598 (June 8, 2020); D.C. Act 23-405 § 706, 67 D.C.
7
No. 21-CO-167
legislation9 and conferred compassionate release authority on Superior Court judges.
This permanent legislation was signed by the Mayor on January 13, 2021.
In its permanent form, the statute dictates that compassionate release “shall”
be granted to D.C. prisoners who demonstrate both their eligibility and
nondangerousness under D.C. Code § 24-403.04(a). In addition to defining two
eligibility groups with specificity—prisoners with a terminal illness and prisoners
over age 60 who have served at least 20 years in prison, D.C. Code
§ 24-403.04(a)(1)–(2)—the statute includes a catchall provision for prisoners who
demonstrate “extraordinary and compelling reasons” for modification of their
sentence, D.C. Code § 24-403.04(a)(3). This catchall category “includ[es],” inter
alia, those prisoners who are over age 60, have “served the lesser of 15 years or 75%
of [their] sentence,” and “[s]uffer[] from a chronic or serious medical condition . . .
that causes an acute vulnerability to severe medical complications or death as a result
of COVID-19.” D.C. Code § 24-403.04(a)(3)(B).
The Superior Court correctly determined that, under this catchall provision, a
D.C. prisoner can demonstrate eligibility for compassionate release by showing that
they are at risk for severe illness from COVID-19, regardless of age or time served.
This understanding of D.C. Code § 24-403.04(a)(3)(B) is both (1) supported by its
plain text, see Aboye v. United States, 121 A.3d 1245, 1249 (D.C. 2015) (“[T]he
participle including typically indicates a partial list.” (internal quotation marks
omitted)); Edwards v. United States, 583 A.2d 661, 664 & n.3 (D.C. 1990) (“Where
general words [precede or] follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar in nature to those
objects enumerated by the . . . specific words.” (footnote omitted) (quoting 2A N.
Singer, Sutherland Statutory Construction § 47.17, at 166 (4th ed. 1984))), and (2)
confirmed by its legislative history. In the report addressing a bill to make what had
been emergency and temporary legislation permanent, the Committee on the
Judiciary and Public Safety approvingly noted that since the compassionate release
statute had been enacted
Reg. 10235 (Aug. 19, 2020); D.C. Law 23-130 § 706, 67 D.C. Reg. 8622 (Oct. 9,
2020); D.C. Act 24-30 § 706, 68 D.C. Reg. 3101 (Mar. 17, 2021).
9
Compare D.C. Act 23-286 § 305, 67 D.C. Reg. 4178 (Apr. 10, 2020), with
D.C. Law 23-274 § 1203, 68 D.C. Reg. 1034 (Apr. 27, 2021).
8
No. 21-CO-167
Superior Court judges have consistently interpreted the
“[o]ther extraordinary and compelling reasons” language
in D.C. Code 24-403.04(a)(3) as including relief to
defendants whose age, medical conditions, or other
circumstances increase their vulnerability to death or
severe illness from COVID-19, for example, even if they
do not meet the definition of “elderly” based on their age
or length of imprisonment, and even if their medical
conditions do not rise to the level of “terminal” or
“debilitating.”
Report on Bill No. 23-127 before the Comm. on the Judiciary & Pub. Safety, Council
of the District of Columbia at 27–28 (Nov. 23, 2020) (alteration in original). The
Committee Report then favorably cited more than a dozen Superior Court orders
granting compassionate release on this basis, id. at 28 n.118, and endorsed these
rulings as examples of Superior Court judges “appropriate[ly] [exercising their]
discretion to review the compelling facts of a case,” id. at 28–29. 10
Employing this legislatively-approved construction of the catchall provision,
the Superior Court found that Mr. Page was at risk for severe illness from
COVID-19. But the court did not end its eligibility analysis there. Instead, the court
went on to separately address Mr. Page’s “[l]ikelihood of reinfection.” While the
court did not “discount the possibility that . . . Mr. Page may be one of the unlucky”
prisoners at the BOP facility where he was then incarcerated who could be
reinfected, the court concluded that “the possibility of reinfection in this case is low.”
Considering both Mr. Page’s “higher risk . . . of serious consequences should [he]
become reinfected with COVID-19” and the “relatively low risk that he will become
10
My colleagues in the majority quote this language to support their
determination that the Council gave Superior Court judges unfettered discretion to
incorporate a prisoner’s likelihood of infection as a factor in an assessment of
eligibility for compassionate release. But they simply ignore the fact that the
“appropriate [exercise of] discretion” being endorsed by the Council was the
Superior Court’s expansive interpretation of the catchall provision to render eligible
any prisoner at risk of serious illness or death from COVID-19.
9
No. 21-CO-167
reinfected,” the court concluded that Mr. Page was ineligible for compassionate
release.
The Superior Court erred by denying Mr. Page’s motion for compassionate
release by requiring him to make an additional showing beyond that which is
contemplated in the compassionate release statute, regarding a circumstance the
Council had already legislatively validated.
As the majority of the division concedes, ante at 2, the Superior Court’s
consideration of the likelihood of infection (or reinfection) with COVID-19 has no
foundation in the text of the District’s compassionate release statute, see Davis v.
United States, 397 A.2d 951, 956 (D.C. 1979) (“We must first look at the language
of the statute by itself to see if the language is plain and admits of no more than one
meaning.”).11 The language of the compassionate release catchall contains no
reference to vulnerability to infection from COVID-19. Rather, the inclusive
catchall references only a prisoner’s vulnerability to the consequence of infection,
in the form of severe adverse health effects or death, see D.C. Code
§ 24-403.04(a)(3)(B)(iii).
Further, the legislative history makes it pellucidly clear that the Council, in
drafting this statute, operated from the premise that it “is beyond doubt and could
hardly be overstated” “that individuals in jails and prisons are particularly vulnerable
during this pandemic,” see Mitchell v. United States, 234 A.3d 1203, 1211 n.13
11
Indeed, the Superior Court’s consideration of the likelihood of infection in
assessing eligibility for compassionate release has no foundation full stop. The court
provided no explanation for why it determined, over Mr. Page’s objection, that this
consideration was a legitimate component of an eligibility analysis under the
compassionate release statute.
The Superior Court did note at one point that “multiple federal courts have
concluded [that] in the context of the federal compassionate release statute, the fact
that an inmate has had and recovered from COVID-19 cuts against a claim of
extraordinary and compelling reasons for release.” But whether a prisoner’s
previous illness with COVID-19 increases or decreases their risk of severe illness in
the future and thus cuts for or against compassionate release under D.C. Code
§ 24-403.04(a)(3) is a different question from whether it is likely that a prisoner will
be reinfected with COVID-19.
10
No. 21-CO-167
(D.C. 2020).12 The Council thus made vulnerability to the consequences of infection
with COVID-19 its exclusive concern.
The Council’s presupposition that D.C. prisoners were at increased risk of
infection from COVID-19 was evident from the outset of its discussion of the
compassionate release legislation. At a legislative meeting on April 7, 2020,
Councilmember Charles Allen quoted a Washington Post article that described jails
and prisons, like nursing homes and cruise ships, as “perfect incubators” for
COVID-19, and warned:
The real danger is in doing nothing, on the belief that what
takes place in penal institutions is less critical or somehow
separate from society — or that the lives of convicts are
worth less than those of free men and women. In fact,
prisons and jails are porous places; their walls do nothing
to impede the spread of disease. The failure to contain the
virus on the inside, for whatever reason, will accelerate its
proliferation on the outside.13
12
See id. (citing Joshua Rich, Coronavirus Disproportionately Harms U.S.
Prison Population, UCLA Newsroom (July 8, 2020),
https://newsroom.ucla.edu/releases/coronavirus-disproportionately-harms-u-s-
prison-population https://perma.cc/9BWS-YADP (“People incarcerated in U.S.
prisons tested positive for COVID-19 at a rate 5.5 times higher than the general
public.”) and A State-by-State Look at Coronavirus in Prisons, Marshall Project
(Aug. 6, 2020), www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-
coronavirus-in-prisons https://perma.cc/6S7P-AFA7 (counting, as of August 6,
2020, about 86,000 infected in our nation’s prisons)); see also Gregory Hooks &
Wendy Sawyer, Mass Incarceration, COVID-19, and Community Spread, Prison
Policy Initiative (Dec. 2020),
https://www.prisonpolicy.org/reports/covidspread.html#summary
https://perma.cc/3GX2-72XC (documenting that over half a million new cases of
COVID-19 in the summer of 2020—or roughly 13% of all new cases in the United
States—were attributable to mass incarceration).
13
D.C. Council, Twenty-Seventh Legislative Meeting at 47:40 (Apr. 7, 2020)
(quoting Editorial Board, Officials Must Work Quickly to Help Prevent the
Coronavirus in Prisons, Wash. Post (Mar. 17, 2020),
11
No. 21-CO-167
Similarly, Councilmember Kenyan McDuffie observed, “we know what happens
when you have density, when people are living on top of one another basically.” 14
When the Judiciary Committee issued its report supporting passage of
permanent compassionate release legislation seven months later, in November 2020,
councilmembers reaffirmed their presupposition that D.C. prisoners are at a higher
risk of contracting COVID-19 by virtue of being incarcerated. Now they had hard
data to back up their earlier-expressed concerns. The Committee Report cited
statistics about the number of infections/deaths in prisons and jails across the country
(at the same time highlighting the inadequacy of the BOP’s reports regarding D.C.
prisoners). Report on Bill No. 23-127 at 24–25. After noting that black and latinx
individuals “experience higher rates of disease and illness overall” and are
significantly more likely to contract COVID-19 in the community, the Committee
Report noted that these communities are disproportionately incarcerated, id. at 25,
and that “in the jail or prison congregate care setting, poor outcomes for incarcerated
individuals have . . . flourished,” id. at 25–26; see also id. at 24–25 (acknowledging
that more than 250,000 incarcerated individuals had been infected with COVID-19
as of the beginning of November 2020). Fittingly, in the discussion of the expansive
interpretation of the compassionate release eligibility catchall provision, see supra,
the Committee Report favorably cited a number of Superior Court cases which
acknowledged the “inherently” heightened risk of contracting COVID-19 while in a
congregate, carceral setting. See United States v. Kitt, No. 1997 FEL 2334, at *5–6
(D.C. Super. Ct. Sept. 28, 2020) (explaining that the statistics regarding infection at
the prisoner’s facility “illustrate[d] the inherent risks posed by carceral settings to
vulnerable inmates in the context of a global pandemic and . . . support[ed] the
proposition that Mr. Kitt remains at risk so long as he is incarcerated” (emphases
added) (internal quotation marks and citation omitted)).15
https://www.washingtonpost.com/opinions/officials-must-work-quickly-to-help-
prevent-the-coronavirus-in-prisons/2020/03/16/054babf6-67b9-11ea-8012-
fdc44a41cb4f_story.html https://perma.cc/PF9Q-Z2GW).
14
Id. at 1:28:35.
15
Without identifying it by name, the majority imprecisely and incompletely
quotes from another Superior Court decision favorably cited by the Council,
United States v. Ayers, No. 2008 CF3 20985 (D.C. Super. Ct. Aug. 13, 2020). But
that decision, like numerous others listed in the Committee Report, reflects the same
concern that prisoners are vulnerable simply by virtue of being held in prisons. See
12
No. 21-CO-167
In short, both the plain text of D.C. Code § 24-403.04(a)(3)—which says
nothing about requiring a defendant to show a likelihood of infection—and the
legislative history—which reveals that the Council foresaw that prisons would be
petri dishes for COVID-19 and enacted the permanent compassionate release
legislation based on that confirmed premise—compel the conclusion that the
Superior Court exceeded its authority by requiring Mr. Page to make the additional
showing that he was likely to be reinfected with COVID-19 while incarcerated. Per
the statute, the task of the Superior Court in assessing eligibility for compassionate
release under the catchall provision is only to assess whether a prisoner, were they
to contract COVID-19, would be “vulnerabl[e] to severe medical complications or
death.” D.C. Code § 24-403.04(a)(3)(B)(iii).
It is true that vaccines were not yet widely available in the United States when
the permanent compassionate release legislation was approved by the Council in
December 2020 and signed by the Mayor in January 2021. But by December
vaccines were anticipated, and by January millions of people, including at least some
id. at *9 (concluding that “Defendant’s medical diagnosis, in combination with
his confinement to a penal institution, places Defendant at an increased risk for
contracting COVID-19, and of suffering severe illness from it” (emphasis added));
see also, e.g., United States v. Montgomery, No. 2015 CF2 11794, at *3 (D.C. Super.
Ct. May 29, 2020) (explaining that the compassionate release statute was one of
“various efforts . . . currently underway to . . . release . . . detained individuals”
because of the “unique challenges” faced by correctional facilities in controlling the
spread of COVID-19 (internal quotation marks omitted)); United States v. Jennings,
No. 2000 FEL 4515, at *9–10 (D.C. Super. Ct. Oct. 30, 2020) (acknowledging there
is “no dispute that the conditions of incarceration increase the risk that defendant
might contract Covid-19”); United States v. Bartrum, No. 1990 FEL 2059, at *12-13
(D.C. Super. Ct. June 16, 2020) (acknowledging the “particularly devastating impact
[of COVID-19] within our jails and prisons”).
In none of the cases favorably cited by the Council did the Superior Court
determine that the prisoner-movant bore the burden to prove that he was at a
heightened risk of contracting COVID-19, as the trial court did in this case.
13
No. 21-CO-167
BOP prisoners, had been vaccinated in this country. 16 Thus we cannot presume the
Council’s compassionate release legislation was premised on the nonexistence of
vaccines. Moreover, the distribution of vaccines across the United States
notwithstanding, the global pandemic is not over. Federal and District of Columbia
declarations of emergency remain in place. 17 Prisons remain an ideal environment
for transmission of this disease.18 Whether the eligibility criteria for compassionate
16
See Coronavirus (COVID-19) Vaccinations, Our World in Data (last visited
July 6, 2021), https://ourworldindata.org/covid-vaccinations?country=USA
https://perma.cc/FAZ8-ZXJJ.
After early reports that BOP was reserving initial doses of the vaccine for its
staff, the BOP publicly announced in December 2020 that some unspecified number
of “high risk inmates in a few of the BOP facilities in different regions of the country
ha[d] received the vaccine.” Michael Balsamo, Reversing Course, Feds Say Some
US Inmates Get Virus Vaccine, Assoc. Press (Dec. 22, 2020),
https://apnews.com/article/coronavirus-pandemic-prisons-
d2c1a3013351ed42cf75a194e4661cf3 https://perma.cc/59BV-TK3G.
17
See Continuation of the National Emergency Concerning the Coronavirus
Disease 2019 (COVID-19) Pandemic, 86 Fed. Reg. 11,599 (Feb. 26, 2021); Renewal
of the Determination that a Public Health Emergency Exists Nationwide as the
Result of the Continued Consequences of Coronavirus Disease 2019 (COVID-19)
Pandemic, U.S. Dep’t of Health & Human Servs. (Apr. 15, 2021),
https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVID-
15April2021.aspx https://perma.cc/WB7G-FAQH; Mayor’s Order 2021-69:
Modified Measures for Spring/Summer 2021 of Washington, DC Reopening and
Extension of Public and Public Health Emergencies, Exec. Off. of the Mayor (May
17, 2021),
https://coronavirus.dc.gov/sites/default/files/dc/sites/coronavirus/page_content/atta
chments/Mayor%27s%20Order%202021-
069%20Modified%20Measures%20for%20Spring%20Summer%202021%20of%2
0Washington%2C%20DC%20Reopening%20and%20Extention%XXX-XX-XXXX.pdf
https://perma.cc/MS3U-4UTY.
18
See Katie Park et al., A Half-Million People Got COVID-19 in Prison. Are
Officials Ready for the Next Pandemic?, The Marshall Project (June 30, 2021),
https://www.themarshallproject.org/2021/06/30/a-half-million-people-got-covid-
14
No. 21-CO-167
release should be revised and made more onerous by requiring an additional showing
of likelihood of infection—when new variants of the COVID-19 virus have been
identified, 19 demographic fault lines in vaccination have emerged that may keep the
virus in circulation, at least regionally, for years to come, 20 and new cases are still
being reported in Bureau of Prisons facilities where D.C. prisoners are
incarcerated21—is quintessentially a policy question to be answered by the Council.
The fact that the Council expressly “welcome[d] ongoing empirical review of
the legislation’s implementation and efficacy,” Report on Bill No. 23-127 at 29,
19-in-prison-are-officials-ready-for-the-next-pandemic https://perma.cc/8L46-
BZAC.
19
See Roni Caryn Rabin et al., Masks Again? Delta Variant’s Spread Prompts
Reconsideration of Precautions, N.Y. Times (June 29, 2021),
https://www.nytimes.com/2021/06/29/health/coronavirus-delta-variant-masks.html
https://perma.cc/ZC7Q-X5S4 (noting that studies have shown vaccines “are slightly
less” effective against the “highly infectious” Delta variant than other variants,
which “now accounts for one in four infections in the United States,” and that “Dr.
Anthony S. Fauci, the nation’s top infectious disease doctor, has called the variant
‘the greatest threat’ to eliminating the virus in the United States”); Jen Christensen,
CDC Now Calls Coronavirus Delta Variant a ‘Variant of Concern’, CNN (June 15,
2021), https://www.cnn.com/2021/06/15/health/delta-variant-of-concern-cdc-
coronavirus/index.html https://perma.cc/T8WW-LA9G.
20
See Apoorva Mandavilli, Reaching ‘Herd Immunity’ is Unlikely in the U.S.,
Experts Now Believe, N.Y. Times (May 3, 2021),
https://www.nytimes.com/2021/05/03/health/covid-herd-immunity-vaccine.html
https://perma.cc/LJ9C-Q548 (reporting that “daily vaccination rates are slipping,
and there is widespread consensus among scientists and public health experts that
the herd immunity threshold is not attainable”).
21
See COVID-19, Fed. Bureau of Prisons (last visited July 6, 2021),
https://www.bop.gov/coronavirus/ https://perma.cc/49JS-9KEL (reporting active
cases at sixty-four BOP-managed facilities as of July 2, 2021); but see Federal
Facilities in the United States, UCLA Law Covid Behind Bars Data Project (last
visited July 6, 2021), https://uclacovidbehindbars.org/federal/#scorecard
https://perma.cc/E7J8-BNUN (noting that “[t]rue case counts” in federal facilities
“may be significantly higher than reported”).
15
No. 21-CO-167
signals that it anticipated that it might need to make policy adjustments based on
new data. Presumably, that data would include information about COVID-19
testing, vaccination policies, and vaccination rates for inmates and staff alike at BOP
facilities, with a focus on D.C. prisoners.22 If and when the Council determines the
particular risk of infection with COVID-19 has sufficiently abated for D.C.
prisoners, the Council can amend D.C. Code § 24-403.04, with emergency or
temporary legislation if it desires (as it has already demonstrated it is able to do). In
the meantime, the courts should apply the compassionate release statute as drafted
by the Council. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613,
1613–14 (2020) (Roberts, C.J., concurring) (“When [elected] officials undertake to
act in areas fraught with medical and scientific uncertainties, their latitude must be
especially broad . . . [and] should not be subject to second-guessing by an unelected
federal judiciary, which lacks the background, competence, and expertise to assess
public health and is not accountable to the people.” (internal quotation marks,
citation, and brackets omitted)).
Because the majority affirms a misreading of the statute and oversteps its
judicial role in imposing additional restrictions on eligibility for compassionate
release, I respectfully dissent.
22
The most recent data reflects that over half a million prisoners and prison
staff in the United States have contracted COVID-19 but that number is likely an
undercount because of gaps in testing in prison facilities. See supra note 19; see
also COVID-19 Recedes in Prisons, But Conditions Could Spell Future Outbreaks,
NPR (July 3, 2021), https://www.npr.org/2021/07/03/1012907942/covid-19-
recedes-in-prisons-but-conditions-could-spell-future-outbreaks
https://perma.cc/Z4MZ-5HR4.
16
No. 21-CO-167
Copies e-served:
Honorable Julie H. Becker
Director, Criminal Division
Samia Fam, Esquire
Shilpa S. Satoskar, Esquire
Paul R. Maneri, Esquire
Public Defender Service
Chrisellen R. Kolb, Esquire
Assistant United States Attorney
cml