Young Bird was in his early 50s and, among other conditions, had late-stage kidney disease, for which he required dialysis. He wrote to the court April 8, asking to be released from prison. By then, the coronavirus was spreading rapidly throughout the country.
“Once a guard or staff member brings it in here, it will spread,” he wrote again April 19, this time to the 8th U.S. Circuit Court of Appeals.
Young Bird was trying to secure an avenue out of prison faster than the virus could spread.
Over the past two years, thousands of other federal inmates argued the same grim position, trying to use an established process to petition for release before their time in prison effectively became a death sentence.
Many of them ultimately lost. Eventually, Young Bird would too.
As of early March, officials at the Federal Bureau of Prisons (BOP) say 287 federal inmates have died from COVID-19, a count that does not include deaths in privately managed prisons. Bureau officials have been saying since the beginning of the pandemic that they have a plan to keep the situation under control, but an NPR analysis of federal prison death records suggests a far different story.
The federal prison system has seen a significant rise in deaths during the pandemic years. In 2020, the death rate in prisons run by the BOP was 50% higher than the five years before the pandemic. Last year, it was 20% higher, according to the NPR analysis of age-adjusted death rates.
Of those who died from COVID-19, nearly all were elderly or had a medical condition that put them at a higher risk of dying from the virus, NPR found. Many of them seemed to sense their fate — and had tried to get out. And those who made their case in court often faced a slow and complicated process that was unable to meet the pace of a rapidly spreading virus.
“All you heard was just coughing all night, all night”
The Federal Bureau of Prisons had a problem from the day the coronavirus arrived in the U.S.: Prisons were likely to be a petri dish for COVID-19. Because staying away from others is nearly impossible inside a prison, health experts said the most effective way to deal with that problem was to make the prison population much smaller — and quickly.
Ron Shehee lived through the outbreak at the federal prison complex in Lompoc, Calif., where 70% of inmates tested positive for the coronavirus by May 2020. He lived in the prison camp — also known as a minimum security institution — with more than 100 other men, where they slept closely together in bunks, shared bathrooms and ate together. Convicted in 2019 on charges related to selling methamphetamine, Shehee had been at Lompoc only a few months when the pandemic struck.
“At first, we didn’t even know that COVID existed. We just had people start getting real, real sick,” Shehee remembers. Some were so sick that Shehee, who is paralyzed from the waist down, said he began letting other inmates use his wheelchair to transport people to the medical room. The atmosphere became tense.
“People trying to hold in their cough because it’ll start an argument, and people trying to get up and rush to the bathroom so they don’t cough,” Shehee recalled. “At nighttime, that’s all you heard was just coughing all night, all night.”
Shehee was placed in isolation after his friend Jimmie Lee Houston died of COVID in early May. But that isolation, he said, felt more like being punished with solitary confinement, and without the medical care he needed, like the catheter he requires or the medications he takes for spasms and asthma.
“They did put me in a nasty little cell all by myself,” Shehee said. “And over there in the hole, they don’t talk to you. Every time they come up to the door, they shove your food in. And if you ask a question, they don’t care.”
At one point, he said, he fell out of his wheelchair while showering and had to crawl back to his bunk. Experiences like Shehee’s sparked fear in other prisons as well, where there were reports of inmates not reporting symptoms because they wanted to avoid isolation. When asked about Shehee’s experience at Lompoc, the Bureau of Prisons declined to comment on “anecdotal allegations.”
In June of 2020, Michael Carvajal, the BOP director, acknowledged this problem to the Senate Judiciary Committee. “Prisons, by design, are not made for social distancing,” Carvajal testified. “They are, on the opposite, made to contain people.”
Carvajal, who announced his resignation in January of this year, assured the committee that regardless of social distancing, the bureau had a “sound pandemic plan.”
It’s difficult to get a full view of how the federal prison system has responded to the pandemic at each of its 122 prisons nationwide, but NPR spoke with several current bureau employees who described issues that went against that plan, including the transfer of COVID-positive inmates between prisons and units.
“Our agency is reactive and not proactive. You know, they waited until it got out of hand and then tried to fix things, but by then it was too late,” said Aaron McGlothin, a warehouse worker foreman and local union president at the federal prison in Mendota, Calif.
“I don’t trust anything the Bureau of Prisons says,” said Eric Speirs, a senior correctional officer and local union president at the federal detention center in Miami. “We’ve had places catch on fire with COVID.”
The bureau declined an interview for this story, but in a statement, a spokesperson wrote that the Bureau of Prisons has worked with the Centers for Disease Control and Prevention, has “implemented a flexible and tiered approach,” and is “taking appropriate steps to normalize operations as safety and security permit.”
Ron Shehee, the prisoner at the Lompoc camp, was eventually granted a compassionate release and now lives in Kennewick, Wash., where he works as a used car salesman. He still hasn’t shaken the sense that he averted death.
“I went there to do my time for the crime that I committed and I owned up to that. But I did not plan on going there to die and never see my kids and my family anymore,” Shehee said. “We all was lucky to make it through what we went through, and some of us didn’t.”
“We could have been releasing so many more people”
Some federal criminals will likely never be considered for an early release of any kind, but the pandemic changed the calculation.
On March 26, 2020, then-Attorney General Bill Barr sent a memo to Carvajal, the BOP director, asking him to prioritize home confinement, where a person would be monitored at home and remain in BOP custody. Barr acknowledged that some vulnerable inmates would be safer at home “where appropriate.” Still, he wrote: “Many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care.”
Barr did, however, include a list of factors to consider when releasing an inmate, including age and medical conditions, the security level of the institution, their conduct in prison, their perceived risk of re-offending, their reentry plan and their crime. Some crimes, like sex offenses, wouldn’t be eligible.
The next day, then-President Donald Trump signed the Coronavirus Aid, Relief, and Economic Security Act, known as the CARES Act. It broadened the group of people the BOP could release to home confinement.
At the time, that new authority was still somewhat hypothetical. But by April, Alison Guernsey, who directs the Federal Criminal Defense Clinic at the University of Iowa College of Law, began to receive panicked phone calls from federal prisons.
“We started to see and hear things from our clients, fear in their voices,” said Guernsey. “They called us to say, ‘People have been coughing. I’m really afraid that I’m going to get sick. We’ve been watching things on the news about the need to wear masks. There’s no one here with masks.'”
Guernsey, who has been tracking deaths from COVID-19 in prison, estimates she and other clinic staff have spoken with more than 50 prisoners and even more family members throughout the pandemic.
Just over a week after Barr sent his initial memo — on April 3, 2020 — he sent another, more strongly worded message to the BOP.
“While BOP has taken extensive precautions to prevent COVID-19 from entering its facilities and infecting our inmates, those precautions, like any precautions, have not been perfectly successful at all institutions,” Barr wrote, adding that there were already “significant levels of infections” at several facilities. Those places, he wrote, should “immediately maximize appropriate transfers to home confinement.”
“We have to move with dispatch in using home confinement, where appropriate, to move vulnerable individuals out of these institutions,” Barr wrote. He said that prison officials should consider “all at-risk inmates — not only those who were previously eligible for transfer.”
The determination for who can be sent home — and who cannot — is solely up to the BOP, and by the middle of November 2020, individual wardens became the final authority. After Barr urged the use of home confinement, the BOP added its own criteria to the attorney general’s list.
Home confinement existed before the pandemic, for certain inmates in the final six months or 10% of their sentence, whichever was less. And those inmates kept going home in this way during the pandemic. As of early March of this year, more than 38,000 people had been released to home confinement during the pandemic. Of those, about 9,000 — or about 6% of the current federal prison population — were transferred directly because of the CARES Act.
It’s unclear how many more people might have been eligible for CARES Act home confinement yet were not released.
“CARES Act home confinement is, frankly, a black box,” Guernsey, of the University of Iowa, said. But she feels certain “we could have been releasing so many more people during the pandemic and we just chose not to.”
There is evidence suggesting that to be true.
At the Lompoc prison complex, a report by the Office of the Inspector General estimated that in April 2020, about 957 people in low- and minimum-security detention were potentially eligible for home confinement. By the end of June, 124 inmates had been transferred out.
At the complex in Butner, N.C., the OIG estimated that 1,070 people were potentially eligible for home confinement in April 2020. By July of that year, Butner had released 68 people because of the CARES Act. Another 16 had been approved but were waiting to actually be released, and three who were approved died while waiting.
“Case management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General,” the bureau wrote in a statement in May 2020.
Some federal judges saw things differently. In May 2020, one ordered the prison in Danbury, Conn., to release inmates faster, saying the pace constituted “deliberate indifference.” In July 2020, another judge ordered Lompoc to transfer its vulnerable inmates to home confinement, saying the bureau had “likely been deliberately indifferent to the known urgency to consider inmates for home confinement.”
Maureen Baird, a former warden at Danbury, said the bar for home confinement was simply too high. For instance, the BOP initially said inmates would not be considered if they had any misconduct on their prison record in the past year. The bureau also prioritized inmates who had served at least half of their sentence or a fourth of their sentence if they had 18 months or less remaining.
“When the CARES Act was established and then the Bureau of Prisons came in and made these additional requirements, I think they overstepped their bounds,” Baird said. “You have guys that are in prison now, late 70s, early 80s, mid-80s, that are no danger to the community.”
As time progressed, the bureau loosened some of its criteria. Eventually, inmates with misconduct on their records could be considered, so long as they were still considered safe to release. Wardens could also alert the bureau’s central office in Washington, D.C., if they thought an inmate should be released to home confinement who didn’t otherwise qualify.
To many on the outside and to some bureau employees, the process appeared haphazard, and the release of certain high-profile prisoners who didn’t seem to qualify raised eyebrows.
Former Congresswoman Corrine Brown was released from the Coleman prison complex in Florida after serving less than half of her sentence. Her conviction was later overturned. Michael Cohen and Paul Manafort, then-President Trump’s former lawyer and campaign chairman, were also both released in 2020 after serving less than half of their sentences.
“There was a list of people that were qualified and there was a list of the people who left,” said Joe Rojas, a teacher at Coleman and the former southeast regional vice president for the AFGE Council of Prison Locals. “If you’re an inmate that has political influence and has money, you will probably get released rather than somebody who probably really should have gotten released.”
Other BOP employees told NPR that understaffing made it difficult to quickly assess inmates for home confinement.
Mary Melek, chief union shop steward for the federal detention center in Miami, said part of her job as a case manager is to screen inmates for home confinement. But she often has to cover other shifts. If she needs to finish an inmate’s paperwork but is instead walking the halls as a correctional officer, reviewing the lists of who might be eligible to go home can be a struggle.
“They pile up where you have a list and you can’t get to it because the next day you’ll have to work a custody shift,” Melek said. “It takes, on average, one to two months to get everything processed for somebody that could have probably left in a week.”
One current administrator, who asked to remain anonymous for fear of retaliation, told NPR that home confinement paperwork at their prison often sat around for months.
“Think about it. Everyone is already overworked and stressed. Who’s going to start an inmate’s paperwork?” the administrator said.
In a statement, a BOP spokesperson told NPR “all inmates are reviewed appropriately” for CARES Act home confinement. Additionally, the BOP spokesperson wrote, “Despite challenges posed by the pandemic, we have managed our staffing levels to maintain the safety and security of our staff and inmates.” The spokesperson added that more than 2,000 employees have been hired since March 2021.
“Leadership played down the danger and played up their capacity to deal with it”
By the summer of 2020, Waylon Young Bird had already been denied home confinement.
He continued writing to Judge Lange. Young Bird, who grew up in the Cheyenne River Sioux Tribe and the Mandan, Hidatsa and Arikara Nation, wrote about his family in the Dakotas, his struggles with addiction, and the prayer group he started in prison.
For his part, Lange had been reading Young Bird’s letters all along.
“I read them close in time to when they were received,” Lange told NPR. “I had very mixed feelings.”
In its argument against his release, the government noted an “extensive” criminal history in tribal court. Regarding the pandemic, the U.S. attorney wrote: “Defendant only becomes susceptible to increased risk if he contracts COVID-19.”
In June, Lange denied Young Bird’s compassionate release motion.
“Researchers have found that ailments like diabetes and chronic kidney disease put individuals suffering from them, like Young Bird, at higher risk of complications if they contract COVlD-19,” Judge Lange wrote. “However, there is still much that is unknown about how this virus affects individuals, and this Court cannot say to what extent Young Bird’s life is threatened by the existence of COVlD-19.”
Additionally, the judge wrote, Young Bird received health care at his prison, and “the BOP has taken precautions to protect him and his fellow inmates.”
Lange told NPR he felt he had ruled properly in Young Bird’s case, given that Young Bird had served only a small portion of his sentence. And, Lange said, Young Bird had also been using drugs during his pretrial release.
“I just felt that it probably was safest for him to be at a federal medical facility rather than outside,” the judge told NPR. “Looking at things in retrospect is a difficult way to try to go about the job I have, because I have to judge with the information that I presently have.”
Lange said he didn’t know in June 2020 to what extent Young Bird’s life was threatened, given that he was at a federal medical center.
“As a district judge in South Dakota, it’s hard to know exactly what is going on at a Bureau of Prisons facility,” Lange said. “But when I see a medical doctor from the Bureau of Prisons write, in essence, that the individual is receiving appropriate care … I tend to trust that.”
On June 10, just a few days after his denial for release, Young Bird wrote again to Lange.
“I know I just wrote to you but I’m writing again, because this morning around 10 am, an inmate next to me said ‘It’s finally here,'” Young Bird wrote. “It’s official now, that the first case of the coronavirus is here at Springfield, Mo. Medical Center.”
Young Bird wrote that he went back to his unit and put on his face mask, one he said he’d had for a few weeks.
“Our beds are right next to each other. We don’t practice social distancing here,” Young Bird wrote. “I don’t know what to do. I’m scared like everyone else.”
A few days later, he wrote again.
“This coronavirus will start spreading soon, a lot of us will get it,” Young Bird wrote. “I don’t want to die here. I got family I miss, a handicap sister, kids who need me, grandkids too. Can you find it in your heart to reconsider?”
Many other inmates were navigating their options just like Young Bird. Finding themselves denied for home confinement, they took to court to make their case to be released early from their sentences.
A federal inmate’s ability to ask a judge for compassionate release, where a prison sentence is actually reduced, was only recently made possible. Before the First Step Act in 2018, the bureau was solely responsible for identifying prisoners and bringing their cases to court. The First Step Act gave inmates the right to do that themselves. In the first full year the new law was in effect, 96 inmates filed motions themselves. In 2020, nearly 13,000 motions were filed in federal court.
The road to court, though, still starts in the prison. Before they can file their own compassionate release motion, inmates first have to ask their warden to file a motion on their behalf. Then they must wait 30 days for the bureau to respond, though some courts have waived that requirement.
By April 2021, nearly 31,000 inmates took this first step of asking their warden and waiting for an answer. At least 35 died waiting for the Bureau of Prisons to review their case. Ultimately, the bureau approved just 36 of that initial 31,000.
Once an inmate is allowed to file their own motion in court, whether they succeed depends largely on the district their case is in. In the Southern District of Georgia, for instance, federal judges denied 98% of the compassionate release motions they saw between January 2020 and June 2021. In the District of Oregon, they denied just 35% of the motions. Overall, federal judges nationwide denied more than 80% of the compassionate release motions in that time, according to data from the U.S. Sentencing Commission.
That tendency to deny is the result of a mentality in the criminal justice system to “just say no,” said Miriam Krinsky, a former federal prosecutor and the executive director of the group Fair and Just Prosecution.
“That mindset of ‘We are going to punish as harshly as possible. We will charge everything possible, we will seek everything possible. And when people want relief from that, we will just say no,'” Krinsky said.
And some of it, she said, is risk aversion.
“People just don’t want to be the ones with their name, their neck, on the line on decisions they view as risky, namely letting people out before their date,” Krinsky said. “The focus is on the one case in a thousand where things go wrong rather than the 999 instances where things go well, where people are released or receive a second chance and do perfectly fine.”
The success of a compassionate release motion depends ultimately on whether a judge finds a prisoner deserving of release. To determine that, a judge will consider the factors that came into play when the inmate was sentenced, like the seriousness of the crime. They’ll also consider whether there are “extraordinary and compelling reasons” that justify release. And that can be influenced in part by whether the COVID conditions in a prison seem dire, said Colin Prince, the chief appellate attorney for the Federal Defenders of Eastern Washington and Idaho.
“My biggest frustration was that the leadership played down the danger and played up their capacity to deal with it,” Prince said of the Bureau of Prisons. “Publicly and to the judiciary in briefings, they were just writing ‘We’ve got this. We’re experts in infectious disease. Here are the many policies we’ve put in place.'”
Once the motions related to COVID started coming in, prosecutors repeatedly argued in court against the release of inmates. They said the BOP had taken significant measures to protect prisoners — and was already prioritizing the release of inmates through another avenue: home confinement.
“It would have been much more honest and, frankly, helpful had the leadership of BOP simply come out and said, ‘There’s only so much we can do,” Prince said. “And what they should have done is gone to the judiciary and said, ‘This is a big problem. We can’t protect these people. You need to help us.'”
Krinsky said that may have made a difference.
“There is often deference to the Bureau of Prisons,” she said. “Their mindset can hold great sway in terms of how these cases play out.”
Instead, many inmates had to go through what was often a lengthy and fruitless legal process. Of the prisoners who died from COVID-19, at least 1 in 4 filed a motion in court for compassionate release, according to NPR’s analysis.
At least three people had their requests granted, yet contracted COVID-19 and died before they could actually be released.
In Kentucky, James Oscar Jones died the same day his release was granted. Andre Williams in North Carolina was granted compassionate release on April 1, 2020, but the court stayed the order. Williams tested positive for COVID on April 5 and died on April 12, two days after the stay was lifted.
In Kansas, Steven Brayfield first asked his warden for compassionate release in July 2020 and was denied about a month later. In early December, he asked again, this time in court, which a judge granted one month later. But Brayfield was already hospitalized with the virus. By then, according to Brayfield’s lawyer, his family could not pay for his medical care if he were released. They requested that, instead, he stay in BOP custody so he could remain on a ventilator. He died on Jan. 19, 2021, at age 63.
Many others died while their motion was still moving through the courts, and some had been waiting months to hear back. At least four requests were denied as moot because the people had already died.
In Indiana, James Lee Wheeler, a 78-year-old with diabetes and high blood pressure, among other conditions, told his lawyer he was deeply anxious about what would happen to him if he contracted COVID-19. In the late summer of 2020, Wheeler woke to find one of his cellmates, who had been having trouble breathing, had died during the night, according to a release motion filed by Wheeler’s lawyer. That motion had been pending for three months when Wheeler died that December.
Others who died were denied not necessarily because they were ineligible but for other, more administrative, reasons: Some because they did not exhaust all avenues with their wardens first. And sometimes, the courts simply seemed to make a mistake — like in the case of Abdul-Aziz Rashid Muhammad.
In the fall of 2020, his daughter Marie Holiday was starting to make plans to spend time with her father without a guard watching over them. Muhammad had been in prison, for charges related to armed robbery, nearly all of Holiday’s life.
That fall, Holiday had a glimmer of hope: One of her father’s convictions had been ruled unconstitutional, and he had a resentencing hearing scheduled in early 2021.
“He said he was coming home. He was confident,” Holiday said. “He’s been fighting a long fight, a long battle.”
In April 2020, even before his resentencing hearing was set, he had asked for compassionate release, citing several health conditions that put him at a higher risk of death from COVID-19.
In May, the U.S. attorney wrote in his argument against Muhammad’s release that there were no confirmed cases of COVID-19 at the federal medical center in Rochester, Minn., where Muhammad was located.
In September, the court denied Muhammad’s motion, writing “speculative concern about catching COVID is not enough” given that, even by that fall, only 0.01% of inmates at his prison had the virus.
But by then, Muhammad wasn’t at Rochester. Three months earlier, in June, he had written to the court to tell the judge he had been transferred to Butner, where more than 50% of inmates had tested positive.
Muhammad eventually tested positive, too, on Jan. 13, 2021.
Five days later, he was transported to a hospital, where Holiday was able to see him through a video call.
“I was speechless when I saw him. There was nothing. He was just hooked up to all these different machines and he was not responding.” Holiday remembers. “I just kept repeating that I love him and I’m so sorry.”
On Feb. 9, Muhammad died — one month before the hearing he thought would secure his release.
Every time someone dies of COVID-19 in federal prison, the bureau writes a press release. Every letter is structured the same: First, there’s a timeline of how the disease ravaged their body. Then it names their crime. The notice for Muhammad was no different.
“He had a family that loved him, and I’m sure all those other inmates had families that loved them,” Holiday said. “I’m not saying that everybody is a nice guy that’s in prison, but there are some good people and even those that are bad, they still deserve to be treated like humans.”
“It’s far from over”
People are still regularly contracting COVID-19 and dying from it in federal prison. At least one prisoner, Rasheem Hicks, was denied release, in part, because he chose to be vaccinated, which lowered his medical risk to the virus. Another, Rebecca Marie Adams, was denied, in part, because she chose not to take the vaccine that would lower her risk. Both later died of the virus.
“It’s far from over,” McGlothin, the employee and union president at the prison in Mendota, said. “You know, people are dying, people are getting sick. And the protocols seem to be a lot more lackadaisical than they were two years ago.”
Dr. Homer Venters, former chief medical officer of the New York City jail system and a member of the Biden administration’s COVID-19 Health Equity Task Force, has conducted dozens of inspections of jails, prisons and immigration detention facilities during the pandemic. He said he has seen strengths in the federal prison response to COVID-19 in many places across the country.
“But I have also encountered significant deficiencies in how or whether basic CDC guidelines and BOP policies were being implemented,” Venters testified to the House Judiciary Committee in late January of this year. “There is no doubt that many of these strengths saved lives and, conversely, that many of these deficiencies led to preventable illness and death.”
Venters stressed the need for an independent investigation into all COVID-19 deaths that occurred in federal custody.
“The total story is that people were in places where they were more likely to get COVID and more likely to die from COVID,” Venters told NPR. “We need to fully understand how the inadequacy of care for them contributed to these deaths.”
By the fall of 2020, Waylon Young Bird’s letters were becoming increasingly desperate.
“Nobody cares if you die or not here,” he wrote on Sept. 20.
Just under a month later, he wrote again. He told Judge Lange he qualified for home confinement and compassionate release and should be given a second chance.
“We feel like sitting ducks, waiting for the virus to come and infect us,” he wrote. “I can prove I’m going to be a law-abiding citizen and do good for myself. I’m no danger to others or the community. I’m not a terrible person.”
On Oct. 27, Young Bird wrote again, this time to tell the judge of a major outbreak at the prison. At least 200 inmates and staff were infected. He had been separated from the COVID-positive inmates, he wrote, but he didn’t think staff had a protocol they were following. COVID-positive inmates were still serving the food, he wrote. Some staff, he said, had stopped coming to work.
“I’m afraid I may be infected by the time you receive this letter and would not be able to contact my family by then,” he wrote, ending his letter simply: “I don’t feel good about this at all.”
Young Bird tested positive the following day and died a week later. He was 52.
His aunt, Jo Lynn Little Wounded, got a call early the next morning from a prison employee. He was looking for Young Bird’s mother, who was sleeping in the next room with his sister.
“I just couldn’t even bring myself to tell her and my niece that he passed away,” she said.
Little Wounded sat in the other room for a few hours before she woke them up.
“He didn’t have to die like that,” Little Wounded said. “He died a horrible death in there by himself. And that’s the hardest part, was that he died by himself.”
Little Wounded was ready to welcome him home. His truck remained parked in front of her house for more than a year after his death, until the city finally came and towed it away.
Editor’s note: Some of Waylon Young Bird’s letters contain minor grammatical errors, which NPR has opted to correct for clarity.
Copyright 2022 NPR. To see more, visit https://www.npr.org.
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