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SDNY COURTHOUSE, April 26 – The U.S. Bureau of Prisons on-again, off-again policy of release from facilities where COVID-19 is spreading has drawn rebuke from judges ranging from Kimba M. Wood to, now, Ronnie Abrams.

  In a case that has being going around in circles, on April 24 Judge Abrams ruled: "the BOP represented that it needs seven more days to prepare for her transfer to home confinement. Dkt. 69, Ex. 1. Given the undisputed severity of Ms. Park’s health condition and the acute danger presented to her by continuing to be housed at FCI Danbury, the Court can no longer wait for Ms. Park to be released. As the death rate from COVID-19 continues to grow, especially for those with preexisting health conditions, every day counts. Center for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): People Who Are At Higher Risk (Apr. 24, 2020), available at https://www.cdc.gov/coronavirus/2019- ncov/need-extra-precautions/people-at-higher-risk.html. Accordingly, the Court restores 3 to the docket Ms. Park’s emergency motion for compassionate release and grants it. The BOP is ordered to release Ms. Park immediately."

  In a reasoning relevant not only to the BOP but also Congress, Judge Abrams wrote, " the Court would not otherwise have chosen to have Ms. Park serve only half of her sentence. The Court’s preferred course of action would have been to grant her temporary release, removing her from FCI Danbury during the pandemic while requiring her to eventually serve the remainder of her sentence once the danger from COVID-19 had subsided. But the mechanism for granting temporary release – 18 U.S.C. § 3622(a) – lies solely in the BOP’s hands, leaving the Court without any 10 authority to grant the relief it believes most proper in this instance. See, e.g., United States v. Roberts, No. 18-cr-528, 2020 WL 1700032, at *3 (The Court does not wish to give Ms. Roberts a windfall; it wishes to temporarily release her until the threat from COVID-19 passes and she can finish her sentence in safety.”); United States v. Credidio, No. 19 Cr. 111 (PAE), 2020 WL 1644010, at *2 (S.D.N.Y. Apr. 2, 2020) (“The Court is thus ‘powerless’ to order Ms. Credido ‘temporarily released from custody until circumstances improve,’ even though such temporary release would be ‘the rational and right result.’”). The case is US v. Park, 16-cr-473 (Abrams).

  Also on Judge Abrams' docket: "NOTICE of Warden Denial Of Compassionate Release Request Dated April 24, 2020 as to Lewis Stahl re: [60] Order (Attachments: # (1) Appendix Compassionate Release Denial Letters Dated April 24, 2020)(Behr, Ralph)." That case is
US v. Stahl, 18-cr-694 (Abrams).

   Before Judge Wood, on many of the same issues: convicted Long Island politician Dean Skelos has two more years on his sentence at  Otisville Federal Correctional Institution. He has served less than 30% of his sentencing, which was said to make him ineligible for release to home confinement.

 But now on April 25, this: "Re: United States v. Dean Skelos, S1 15 Cr. 317 (KMW)

Dear Judge Wood: Representatives of the Bureau of Prisons have informed the Government that Dean Skelos has been approved for home confinement and will be released on or before April 30, 2020. The Government respectfully submits that the Court should therefore defer any action on Skelos’s motion for compassionate release until that date. Once he is in fact released, the Court should then deny Skelos’s motion.

Respectfully submitted, AUDREY STRAUSS Attorney for the United States, Acting Under Authority Conferred by 28 U.S.C. § 515  By: Edward B. Diskant Thomas McKay Douglas Zolkind."

Amid the Coronavirus crisis, Skelos had asked U.S. District Court for the Southern District of New York Judge Kimba M. Wood for compassionate release, while the Bureau of Prisons considers his application for furlough, see below.

 Now on April 24, this: "OPINION AND ORDER as to Dean Skelos: In light of the urgency and seriousness of the present circumstances, including those expressed in the Court's April 12, 2020 Opinion and Order, and in light of the BOP's prior representations to the Court through Government counsel, the Court expected that Defendant would be granted a furlough or home confinement. The Court requires the BOP to inform the Court by 5:00 p.m. on April 27, 2020, whether Defendant will be granted a furlough, or whether the BOP will grant Defendant release on home confinement. If the BOP does not intend to grant Defendant a furlough, the Government shall submit an affidavit by 5:00 p.m. on April 27, 2020 from the appropriate BOP decision-maker explaining why the BOP initially stated that Defendant "will be approved for furlough.", and then later stated that, instead of being approved for furlough, Defendant is merely under consideration for furlough. If the BOP decides not to seek home confinement for Defendant, the BOP decision-maker shall submit an affidavit, by 5:00 p.m. on April 27, 2020, explaining why BOP first decided that Defendant "will be approved for home confinement," and later reversed its decision. The decision-maker shall also state whether there is a reason, in light of all of Defendant's circumstances, not to grant Defendant a deviation from the policy that prioritizes for home confinement those who have served 50% of their sentences, or who have served 25% of their sentences and have 18 months or fewer remaining on their sentences. If the BOP decides that Defendant should remain in custody, the Court requests that the appropriate BOP decision-maker also explain (1) what provisions (if any) will be made to isolate Defendant from other inmates without compromising Defendant's own health and that of other inmates; and (2) what provisions will be made to provide appropriate medical treatment for Defendant, in light of his COVID-19-positive status and his costochondritis, as well as his age and other underlying conditions. SO ORDERED. (Signed by Judge Kimba M. Wood on 2/24/2020) (lnl)."

 On April 21 AUSA Thomas McKay said that Otisville staff on April 20 were told, no more home confinement unless served 50% of sentence. Skelos is at 30%, so no home confinement.
 
  The argument moved to furlough, which would moot out Skelos' compassionate release application.

  AUSA McKay continued: If Otisville really did get Skelos' application on March 26, his 30 days would be up by this Saturday.

Judge Kimba Wood asked, I understand he is alone in his cell?

  AUSA McKay replied, I don't know.

  Judge Wood asked / told McKay: We have read that all inmates at Otisville are being furloughed?

  AUSA McKay said, That's not my understanding, based on talks with camp administrator.

 Judge Woods asked, Mr Skelos was tested and proved to be positive but asymptomatic. Why was he tested?

   AUSA McKay replied, He had a fever on April 8.

  Judge Wood followed up, How many tests for COVID-19 have been administered in Otisville and how many are positive?

AUSA: I'll look on website... Nine  inmates and 10 staff. But that doesn't distinguish between the camp and the separate medium security facility.

   Judge Wood concluded, If furlough is not granted by Thursday, please turn to briefing about my jurisdiction.

   AUSA McKay previewed his briefing, saying We see two issues - jurisdiction given Mr. Skelos' appeal to the Second Circuit, and the question of exhaustion [of administrative remedies]. We think the court should simply deny the motion.

  Skelos' lawyer Robert Gage implored: This situation is Kafka-esque, as one judge put it. We urge your Honor to grant compassionate release.

   After AUSA McKay then quoted Dr. Fauci, Judge Wood said, Your premise, Mr. McKay, is that it is the inmate's immune system that is responding. But isn't the rate of infection part of it?

  Skelos' lawyer Gage made a request: Can you cause the release to us of the memo with the standards for release?

  Judge Wood: I don't think denial of furlough could be appealed, so I'm not sure how it would help you. Can you brief by 5 pm on Thursday?  Both sides said yes, though a grant of furlough was obviate the need for briefing. Inner City Press will stay on this case - or rather, cases.

  On April 10 Dean Skelos' son Adam has asked Judge Wood to be release from detention in Danbury: "Re: United States v. Dean Skelos and Adam Skelos Case No. 15-cr-317 (KMW) Dear Judge Wood, We represent Adam Skelos in the appeal of the above matter by appointment of the CJA panel. On his behalf, we respectfully move the Court pursuant to 18 U.S.C. § 3582(c)(1)(A) to allow him to finish the remaining portion of his prison sentence on home confinement. This change in his sentence would allow him to protect himself and others from the disease caused by the 2019 novel coronavirus (“COVID-19”) by sheltering in place at his residence. In recent weeks, COVID-19 has caused an unprecedented global public health crisis. As of April 9, 2020, 427,460 Americans have contracted COVID-19, and 14,696 have died from it.1  Prisons have not been spared: hundreds of COVID-19 cases have been confirmed in local, state and federal jails and prisons, though the actual figure is almost certainly higher because of underreporting.2  There are currently 36 inmates and 15 staff at Danbury FCI (“Danbury”) with confirmed cases of COVID-19 and we believe that those who are infected with the disease are more widespread than previously announced." Watch this site.  

  On April 3 in a telephone conference Judge Wood grilled Skelos' lawyers on why he is not instead applying for bailing pending appeal.

   Assistant US Attorney Thomas McKay called this very telling, indictive that Skelos' real concern is not the possibility of getting COVID-19 at Otisville but instead using the crisis to get his sentence eliminated.   

As to compassionate release, as Inner City Press has been reporting this week in a decision by SDNY Judge Andrew L. Carter and another pending from Judge P. Kevin Castel, there is a strong argument that exhaustion of administrative remedies is required before a federal District judge would grant release.  (Judge Castels confirmed that on April 6 here.)

Skelos only applied to the Bureau of Prisons in late March, and BOP has thirty days to rule.   Judge Wood directed Skelos' lawyers to address by Tuesday the question of why they are not asking for bailing pending appeal.

  On April 6 past 5 pm Skelos' lawyers replied that "any time spent out on bail pending appeal would not count as time served against Mr. Skelos' sentence... Mr Skelos decided it was in his best interest not to seek bail pending appeal.. Scientists are at least 18 months away from an effective mass produced vaccination" for COVID-19. They cited CNN. Watch this site.
 Inner City Press will continue to report on this case. It is US v. Skelos, 15-cr-317 (Wood).  

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