The last time Sean McQuiddy called home from a federal prison, it was just before Christmas 2020, and he had just tested positive for Covid-19.
“If I don’t get out of here,” his brother remembers telling him, “you just have to know that I love you.”
McQuiddy was from Nashville, Tennessee, and had a 23-year life sentence for selling crack. The other two dozen defendants in his case had already left, including his younger brother Darrell, who had obtained a reduced sentence a few years ago.
But on a technicality, Sean, 54, was not so lucky. And when the pandemic hit, he was concerned: he was overweight, had high blood pressure, asthma, and other respiratory problems. In August, he had begged prison officials to compassionately release him, citing the biggest threat from the virus. But court records show the warden ignored his request.
Tens of thousands of federal inmates like McQuiddy requested compassionate release after the virus began to invade cells. But new data from the Bureau of Prisons shows that officials approved fewer of those requests during the pandemic than the previous year.
While the director of the base of the pyramid gave the green light to 55 such requests in 2019, a new director who took office in early 2020 approved only 36 applications in the 13 months since the pandemic took hold in March 2020. The drop in approvals came even as the number of people seeking a compassionate release fell It shot from 1,735 in 2019 to nearly 31,000 after the virus struck, according to the new figures.
Because the data was compiled for members of Congress, BOP spokesman Scott Taylor said the agency would not answer any questions about the data, “out of respect and deference” to lawmakers.
But Shon hopwood, a Georgetown law professor, called the agency’s decline in compassionate releases during the pandemic “mind-boggling.”
“They let people die in jail who shouldn’t have had to die,” he said.
Federal judges intervened to free thousands of people due to the inaction of the office. And the office goes on face intense scrutiny and various lawsuits on his handling of Covid-19. Since the first case reported last spring, more than 49,000 federal prisoners have fallen ill and 256 have died, based on patch data tracked by the Marshall Project.
Thirty-five of those who died were awaiting a decision on their release requests, including McQuiddy.
People in federal prisons seeking early release during the pandemic have two main routes. One is home confinement, which allows low-risk prisoners to finish their sentences at home or in a rehabilitation center. They are still considered in custody, and the decision is entirely up to the Bureau of Prisons. When the Covid shutdowns began last March, Congress expanded the eligibility criteria and then Attorney General Bill Barr ordered prison officials to let more people go. Since then, more than 23,700 people have been sent to home confinement, although several thousand of them may have to return to prison once the pandemic ends.
The other is through compassionate liberation. If a warden supports a prisoner’s request, the case goes to the BOP central office, which generally rejects it. If a warden denies a request or 30 days go by with no response, then the incarcerated person can ask a judge to reduce the sentence to the time served. The new data showed that 3,221 people had been released out of compassion since the start of the pandemic, but 99% of those releases were granted by judges despite objections from the office.
Last fall, the Marshall Project published data showing that the Bureau of Prisons rejected or ignored more than 98% of requests for compassionate release during the first three months of the pandemic. Citing that report, federal lawmakers wrote to the agency in December to demand more data on compassionate release and home confinement.
Updated figures described in the agency’s response to Congress in April showed that BOP guards actually endorsed slightly fewer compassionate release requests as the pandemic progressed. In the first three months, the guards approved 1.4% of the release requests. The central office rejected most of them, and the director, Michael Carvajal, finally approved only 0.1%. By the end of April, more than a year after the pandemic and after more than 200 prisoner deaths, the guards had approved 1.2% of the requests and Carvajal again accepted only 0.1%.
By comparison, federal judges approved 21% of the compassionate release requests they considered in 2020, according to a recent report from the US Sentencing Commission.
TThe McQuiddy brothers grew up in the Nashville projects, riding go-karts together and playing soccer. Both dropped out of high school and, in the late 1980s, began selling drugs; Running a crack house seemed like a way out of the poverty that surrounded them, Darrell McQuiddy said.
In 1997, both brothers were arrested. While Darrell ended up with just under 25 years in prison, Sean received a mandatory life sentence because he had paid a 17-year-old to work at the crack house, court records show.
After Congress passed drug sentencing reforms beginning in 2010, the brothers hoped they would not die in prison. But only one of them qualified for a shorter sentence under the new laws: Darrell got nearly four years off because his pre-sentencing report only mentioned powdered cocaine in the description of his crime. But Sean’s pre-sentencing report also included crack, making him ineligible for a sentence reduction.
“It was so unfair what happened to him,” said Sean’s attorney, Michael Holley. “It’s the kind of crack case that would not get a life sentence today.”
TThe office has offered little information on the reasons for denying compassionate release. According to the information that the BOP sent to Congress, the guards denied about 23,000 applications because the person “does not meet the criteria.” About 3,200 people were turned away because their cases “were not extraordinary or compelling,” while just over 1,200 were turned away for not providing enough information or documentation. Four people met the criteria but were denied due to “correctional concerns,” the agency said.
Of the 374 prisoners recommended by guards for compassionate release during the pandemic, just over 90% were rejected or unresponsive by the agency’s central office, apparently without stating why. “The BOP does not track specific reasons for approval or denial of a compassionate release request at the central office level, as there may be multiple reasons for a particular decision,” wrote General Counsel Ken Hyle. Some of those reasons, he added, could be opposition from federal prosecutors, the lack of a release plan or the fear that releasing someone would “minimize the severity of the inmate’s offense.”
Inmates who took their applications to court often faced opposition from federal prosecutors. Alison Guernsey, a clinical associate professor at the University of Iowa School of Law, reviewed the cases of all prisoners who died from the virus, including those seeking compassionate release. She said the Justice Department often said that prisoners requesting release could not prove that they had asked the warden first. At times, prosecutors argued that the Bureau of Prisons was doing everything it could to handle the pandemic responsibly, or that the incarcerated person pleading for release was not really at high risk of contracting the virus.
“In court, prosecutors were fighting release and saying that this person does not have a condition that makes them vulnerable, and then they would die, and the BOP would issue a press release saying that the person had underlying conditions,” Guernsey said. “The two-sided position of the Justice Department, which includes the BOP, is really quite shocking.”
Often the judges agreed with the reasoning of the prosecutors. But in some cases, the judges never made a decision, or the prisoners died first.
When the pandemic hit, McQuiddy was in poor health and had already spent several months in a medical prison. However, several times a day he spoke with his brother, who had been released in 2015 and had started a dump truck company, where he hoped Sean would one day work.
When the warden ignored McQuiddy’s request for compassionate release, he went to court. Prosecutors opposed him, saying he hadn’t made any plans to address his most dangerous underlying condition, obesity, and that he would be safer in prison because no one in the Arkansas facility where he was locked up had died from the virus yet. “Covid-19 is not fatal in most cases,” they wrote in a court file.
But Covid-19 swept the prison a few weeks later, and McQuiddy fell ill. Christmas came and he didn’t call home. Finally, the prison called in late December and told his family that they had transferred him to an outside hospital and put him on a ventilator. His brother and daughters came to see him, and his attorney again asked the judge to consider McQuiddy’s request to be released. Once again, prosecutors objected, this time saying it was not safe to let him out now that he had already fallen ill.
The judge did not rule for more than a month. Finally, in late January, he intervened.
“All pending motions are DENIED as moot,” wrote District Judge William Campbell on January 22, ordering the clerk to close the file.
McQuiddy had died 11 days earlier.
This article was published in association 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 them on Facebook or Twitter
George is Digismak’s reported cum editor with 13 years of experience in Journalism