Thousands of sick prisoners sought release as Covid-19 spread. Nearly all were denied.

This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for The Marshall Project’s newsletter or follow it on Facebook or Twitter.

Even before the coronavirus pandemic hit, Marie Neba feared dying in federal prison. The 56-year-old had stage 4 cancer — and three children waiting for her at home. “Right now, I can barely walk around because of generalized body pain and feet numbness,” she wrote, as she struggled through chemotherapy earlier this year. “The way things are going regarding my treatments here at Carswell can lead me to my grave.”

But last year when she tried to get a rare compassionate release from Carswell medical prison in North Texas, the warden denied her request. When Covid-19 hit, she tried again with a fresh request on March 30 — and this time the warden ignored her altogether.

Marie Neba (Courtesy of Claudel Tilong)
Marie Neba (Courtesy of Claudel Tilong)

In total, 349 women, about a quarter of the prison’s inmates, asked for compassionate release during the first three months of the pandemic. The warden denied or failed to respond to 346 of them, including Neba, who was in prison for Medicare fraud — even though federal guidelines allow compassionate release for terminally ill prisoners if they do not pose a danger to the community. In the months that followed, more than 500 women at Carswell fell ill with Covid-19 and six died. Neba was one of them.

Data recently obtained by The Marshall Project underscores what attorneys, advocates and experts have long suspected: As the pandemic ramped up, federal prison wardens denied or ignored more than 98 percent of compassionate release requests, including many from medically vulnerable prisoners like Neba. Wardens are the first line of review; ultimately, compassionate release petitions must be approved by a judge. Though the Bureau of Prisons has previously posted information about the number of people let out on compassionate release, it wasn’t clear until now just how many prisoners applied for it or how frequently wardens denied these requests despite widespread calls to reduce the prison population in the face of the pandemic.

Of the 10,940 federal prisoners who applied for compassionate release from March through May, wardens approved 156. Some wardens, including those at Seagoville in Texas and Oakdale in Louisiana, did not respond to any request in that time frame, according to the data, while others responded only to deny them all. Higher-ups in Washington, D.C., reviewed 84 of the warden approvals and overturned all but 11. Time and again, the only way prisoners were able to win compassionate release was to take the bureau to court to fight the wardens’ denials.

For dozens of people stuck behind bars, the virus has proved fatal; so far, 134 federal prisoners have died of Covid-19, and more than 15,800 have fallen ill. A statement from the Bureau of Prisons did not address specific questions, including why some wardens failed to respond to release requests. The wardens referred questions to the bureau.

Agency officials declined to comment on Neba’s case or her death. “We do not comment on a specific inmate’s conditions of confinement,” spokesman Justin Long wrote in an email. “However, we can share that the BOP has continued to process compassionate release requests as directed by the First Step Act and agency policy.”

‘They said prison was going to be safer’

There are currently two main ways to get out of federal prison early. One is known as home confinement, when prisoners are allowed to finish their sentences at home or in halfway houses. They’re still considered in custody, and the decision to let them go is entirely up to the Bureau of Prisons, with no legal recourse in the courts. At the start of the pandemic, a federal coronavirus relief bill expanded the eligibility criteria, and the bureau has since sent more than 7,700 prisoners to home confinement, the equivalent of 4.6 percent of the prison population at the start of the pandemic.

The other way to get out of prison early is compassionate release, in which a judge agrees to reduce a prisoner’s sentence to time served. But first, the prisoner must ask the warden for approval. After a warden denies the request or 30 days pass with no response, the prisoner can take the case to court and ask for a judge to approve it. So far, more than 1,600 people have been let out on compassionate release since the start of the pandemic — many of them despite the bureau’s best efforts to thwart them.

“Initially, they just opposed them all,” said Kevin Ring, president of the prisoner advocacy group FAMM. “They thought Covid-19 was no reason to let people out. They said prison was going to be safer.”

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The Bureau of Prisons seems to have decided to rely on home confinement — where the bureau retains control over the person — rather than compassionate release, which reduces the sentence to zero, Ring said.

“They think their job is to keep people in prison, not to let people out,” he said. “Jailers gonna jail.”

Officials were slow to turn to home confinement, which didn’t ramp up until May, and were resistant to compassionate release even as the virus spread through the prison system and prisoners began filing lawsuits over the bureau’s refusal to send people home.

At Elkton, an early hot spot in Ohio where nine prisoners died of Covid-19 and more than 900 got sick beginning in March, the warden denied 866 out of 867 requests for compassionate release between March 1 and May 31.

In California, the prison at Terminal Island became the site of a major outbreak, with 694 prisoners testing positive by the end of May. But the warden only approved five of the 256 compassionate release requests filed by that time.

At Butner, a four-prison complex in North Carolina where 25 prisoners and one correctional officer died in May and June, officials approved 29 of 524 requests by the end of May.

At some prisons, the low number of requests raised questions about the bureau’s recordkeeping. For example, at the Oakdale complex, an early hot spot in Louisiana where eight prisoners have died, officials reported just 95 compassionate release applications by the end of May out of a population of more than 1,700. The warden took action on none of them. At the same time, the prison racked up 191 positive cases.

Likewise at Forrest City, a two-prison complex in Arkansas where more than 700 men fell ill, officials reported only three applications by the end of May. All three were approved.

For more than a dozen institutions, including all 11 of the privately run federal prisons, the bureau listed no compassionate release requests at all.

“The numbers seem incorrect,” said Somil Trivedi, a senior staff attorney with the American Civil Liberties Union, who has helped coordinate lawsuits against federal prisons. “I just don’t feel like they’re counting them all. This has to be an undercount because of the informal nature of the process.”

A fight for freedom

From the Carswell prison, Marie Neba wrote letters to U.S. District Court Judge Andrew Hanen complaining about poor medical care and her worsening health as the pandemic continued. She worried about who would support her 21-year-old daughter in caring for her 9-year-old twin boys if she died in prison. Her husband, who was indicted in the same Medicare fraud case, fled the country for their native Cameroon to avoid trial.

Federal guidelines say that terminal illness, including metastatic cancer, is grounds for compassionate release. But after the Carswell warden ignored Neba’s request and she took her plea to court in April, federal prosecutors fought it aggressively, saying she didn’t deserve a 70-year reduction in her 75-year sentence. They argued, despite widespread reports to the contrary, that the Bureau of Prisons was doing its best to limit the spread of disease behind bars.

In April, government lawyers claimed Neba’s health wasn’t really deteriorating. As evidence of that, prosecutor Catherine Wagner produced a video showing Neba walking on a treadmill and using small weights in the medical center gym, pointing out that she was well enough to be “sweating and walking unassisted.”

Neba’s lawyer said she was only following her doctor’s orders.

“He told her to exercise and eat right,” Zachary Newland said. Making sure she took care of herself, Newland hoped, would keep her alive and free of Covid-19 until she could come home.

Wagner and Department of Justice officials declined to comment.

Federal officials push back against releases

The bureau took nearly three months to respond to The Marshall Project’s request for data on applications for compassionate release and how wardens responded, so the information that the bureau produced only goes through the end of May.

But more people won compassionate release in recent months than at the start of the pandemic. The Marshall Project’s tracking of publicly posted data shows that release numbers grew slowly in April, May and June before nearly doubling in August, when close to 500 people were freed. But those figures dropped in September, and attorneys and experts say that prison officials are still denying releases and that prosecutors are typically opposing the requests in court.

One recent release the bureau opposed was that of Juan Alberto Fernandez, whose diabetes and obesity led to end-stage renal failure, which qualifies for compassionate release under the guidelines. He was serving time on a meth charge, and the warden of FCI Phoenix gave him a rare release recommendation in July. But in August, bureau attorneys at the central office in Washington overturned the recommendation because they said Fernandez could take care of his daily needs such as “bathing; dressing; grooming; feeding; transfers; ambulating; toileting.” Ultimately, a federal judge granted him compassionate release in September.

Another recent case in which both the bureau and prosecutors opposed release was that of Jordan Jucutan, a former Army Reserve recruiter sentenced to 28 months in prison for claiming bonuses for soldiers he didn’t really recruit. He was obese, asthmatic and needed two inhalers, but prosecutors claimed in court that he was “actually much safer” behind bars than he would be if he were released, because his home county — Thurston County in Washington — had more coronavirus cases than the prison did.

A federal judge found that argument unpersuasive: “It makes little sense to compare a prison in Oregon with a whole county in another state,” Judge Ramona Manglona wrote, before approving Jucutan’s release from FCI Sheridan in September.

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Even in the rare instances in which prison officials agree that someone deserves compassionate release, advocates say, they’re still not initiating the process; instead, it’s up to the prisoners to do that themselves.

“We are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection,“ said Davina Chen, a senior federal defender in Los Angeles. Instead, the 1,600-plus prisoners granted compassionate release this year applied with the help of lawyers; a few filed requests in court on their own. Defense lawyers have a word to describe bureau-initiated compassionate release cases: “unicorns.”

Final moments

After months of warning prison officials that she was high-risk, Neba tested positive for the coronavirus in July. By August, prison medical staff thought she had recovered. But then, she developed shortness of breath. She was sent to a hospital in Fort Worth, where she was shackled to her bed and told that she still had Covid-19.

There, a nurse made a video call on FaceTime to show Neba to her 21-year-old daughter, Claudel Tilong, whom she hadn’t seen since March, when the federal prison system cut off visits due to the pandemic. As Tilong struggled to recognize her dying mother, now a frail woman with ashen skin and vacant eyes, a correctional officer in the room interrupted and ended the call. Tilong recalled the words: “It’s not allowed.”

With his client in worsening condition, Neba’s lawyer again begged federal prosecutors to stop opposing her release.

“This is not about Neba anymore,” Newland wrote in an Aug. 17 email. “She’s dying and cannot speak to even make peace with her children if she wanted to do so.”

Still, they refused. So on Aug. 26, Newland begged the judge to end Neba’s sentence. Hours after filing that request, he learned it was too late.

Neba had died a day earlier. A nurse had called Tilong on FaceTime and, sitting in a parked car, Tilong and her 9-year-old twin brothers watched their comatose mother take her last breaths with ventilator tubes in her nose.

One son said goodbye; the other asked his mom to say hi to Moses in heaven.