Last week, a federal court ordered the “compassionate release” of Daniel Hernandez, also known as the New York-based musician 6ix9ine, from a private federal Bureau of Prisons (BOP) facility due to risk posed by the COVID-19 pandemic. Hernandez, who has asthma, will serve the final four months of his two-year sentence under supervised early release in home confinement.
By law, courts have the authority to grant compassionate release to persons who are incarcerated due to “extraordinary or compelling circumstances” such as imminent death or serious incapacitation. However, as Human Rights Watch documented in a 2012 joint report with Families Against Mandatory Minimums (FAMM), the Bureau of Prisons has historically acted as a gatekeeper, blocking all but a few federal prisoners from accessing the courts to request such relief. Between 2013 and 2017, BOP received 5,400 applications for compassionate release and granted only 312 – or roughly six percent – while 266 of the applicants died in custody.
More recently, Congress adopted one of Human Rights Watch’s recommendations by providing in the First Step Act that people in prison could appeal BOP’s denial of a motion for compassionate release to the courts, paving the way for last week’s ruling.
The court’s grant of compassionate release to the high-profile rapper is one example of successful decarceration advocacy amidst the coronavirus outbreak, but it also underscores the urgency of going much further.
According to the latest available data from the US Bureau of Justice Statistics, in 2011 to 2012, an estimated 40 percent of people in state and federal prisons reported having a chronic health condition, which includes asthma. For older populations, these rates can be much higher. One recent study of people released from North Carolina prisons found 71 percent of those aged 55 years or older had a chronic medical condition. Many of these illnesses put detainees at greater risk of severe complications or death from COVID-19.
The release of individuals at high risk of serious effects from COVID-19 from prisons, jails, and immigration detention centers is a necessary step to protect both incarcerated individuals and public health broadly. It’s time for the BOP and the courts to move swiftly to vastly expand grants of compassionate release, before it is too late.
