Flood of inmates, citing coronavirus, seek pandemic paroles — but process is slow

Miami’s Rich Mendez, a successful Latin music executive, says he has been a “model prisoner” while serving a five-year sentence in a low-security federal facility — not for any violent crime but for fraud related to a time-share business a decade ago.

Sentenced to the state pen for cocaine trafficking, Mickael Rodriguez suffers from Type 2 diabetes and needs daily shots of insulin.

Yadiris Wood embezzled nearly $300,000 from a Key West Realtor group. In state prison until at least 2022, she also has failing kidneys and needs dialysis three times a week.

“If they don’t release Yadiris, she could die in prison if she catches the coronavirus,” said her Miami lawyer, Rick Hermida.

As society struggles to contain the viral outbreak, all three are appealing to their wardens for early releases, arguing that the threat of COVID-19 puts them at risk of a penalty far beyond their prison sentences.

Prosecutors, lawyers and judges already have worked with South Florida jails to release hundreds of low-risk inmates who have yet to be convicted of any crimes. But for these three convicted felons and hundreds of others, winning early release from a state or federal prison is a much higher bar — even as officers and inmates at those cramped facilities have increasingly contracted COVID-19.

Prison wardens and legal authorities are being asked to weigh who deserves what amounts to unprecedented pandemic parole — with the central question of trying to balance health risks to convicts against public safety and criminal justice standards. As one federal judge wrote recently in denying a convicted fraudster’s bid to get out of prison, the coronavirus threat is “not a get-out-of-jail-free card for every incarcerated person.”

But that’s not stopping dozens from trying.

In federal prison, many inmates are turning to a 2018 law allowing for “compassionate release” under “extraordinary” circumstances, such as age, health and other critical factors.

As the COVID-19 crisis widened, and prisoners died at facilities in Louisiana and Ohio, U.S. Attorney General William Barr gave the prison system more leeway to release inmates who face greater health risks — and who pose little risk to the public safety. He also advised giving priority to the release of inmates serving time in low-level and minimum-security prisons.

“We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions,” Barr wrote in an April 3 memo.

Under Barr’s new policy, federal prison inmates must first ask their wardens to release them. If they agree, the wardens have the authority to place them on home confinement to complete their sentences. But if they don’t consent, the inmates can seek recourse under the First Step Act in federal court, asking for “compassionate release.” The inmates and their lawyers, however, are at the mercy of federal prosecutors who often oppose these motions and judges who have final say on whether to reduce sentences.

“Most of these inmates are getting out because either the Bureau of Prisons or Justice Department [prosecutors] agreed to it or because a federal judge found ‘extraordinary’ circumstances for releasing them,” said Miami attorney Joe DeMaria, a former federal prosecutor who has been following various cases around the country.

“This is rough justice, and in a very real sense depends on the prosecutor and the presiding judge,” he said. “We will continue to see orders going both ways on this issue, and there is no real way to predict how a judge will rule if a prosecutor opposes release.”

In at least one high-profile Miami case, a federal judge refused to release former healthcare executive Philip Esformes, 51, who is serving 20 years for bilking taxpayers of $1 billion, during the appeal of his fraud conviction. The former Miami Beach businessman claimed he is suffering from asthma, making him vulnerable to the coronavirus, but the judge who presided over his trial last year wasn’t swayed.

“Virtually every person over the age of 50 has some health condition that could conceivably put that person at a greater risk of succumbing to the coronavirus, but this does not entitle every inmate over 50 to be released,” U.S. District Judge Robert Scola wrote in an April 9 order. “Attorney General William Barr’s memo urging the release of particularly vulnerable inmates is not a get-out-of-jail-free card for every incarcerated person.”

Scola also rejected a similar motion by Joel Steinger, 70, a one-time Fort Lauderdale business executive serving 20 years in prison for swindling buyers of life insurance policies belonging to people dying of AIDS. Steinger, citing poor health and the coronavirus threat, wanted the judge to let him out after serving eight years.

“Steinger has offended time and again, even while on bond, and his health issues do not neutralize the danger he poses to the public,” Scola concluded in his order issued Tuesday.

Growing state cases

In Florida state prisons, where defendants by law must serve at least 85 percent of their sentence, many inmates are asking for “medical conditional release.” If prison medical staff deems an inmate “permanently incapacitated,” the case can then be sent to the Florida Commission on Offender Review, which can grant the release.

The commission on Wednesday granted two longtime state prison inmates medical release, although the exact nature of their health woes are not public.

The Florida Department of Corrections, which reports that at least 58 staffers and 42 inmates statewide have contracted the virus, hasn’t said how many inmates are asking to be declared medically incapacitated because of underlying conditions that could make them susceptible to COVID-19, the dangerous respiratory infection caused by the coronavirus. Two inmates at Blackwater Correctional Institution have also died, the first ones in the state prison system.

Reggie Garcia, a Tallahassee lawyer who advocates on behalf of state inmates, said the corrections department has the “power right now under current law” to fit elderly and infirm inmates under the designation because they are at risk of dying from COVID-19.

“My suggestion is that DOC utilize and interpret the power with a broader eye and with a goal toward releasing people who only have six to 12 months left in their sentence anyway,” Garcia said.

The crisis has terrified countless relatives of prison inmates, who are begging lawyers to go to court because they see national headlines about jails and prisons letting their inmates free. But many inmates, particularly those in the federal system convicted of violent and sex crimes, are not eligible for release under the 2018 First Step Act or to be placed on home confinement under Barr’s expanded order.

For those with a chance of release, it means navigating the arcane system of prison bureaucracy.

Defense attorneys must send petition letters to federal prison wardens to seek the release of their clients and then wait 30 days for a response — a seeming eternity during the fast-moving developments of the pandemic. If the wardens approve the requests, a more common result under Barr’s new directive, they notify federal judges who oversaw the inmates’ original cases.

But if the wardens reject the inmates’ requests, a typical response in compassionate release cases, attorneys are now allowed to go to federal court and seek relief.

“It’s a confusing maze that everyone is trying to become an expert on,” said Philip Reizenstein, who recently sent the warden of Miami’s Federal Correctional Institution a letter asking for the release of Mendez, the music executive.

Federal COVID-19 count rising

The U.S. Bureau of Prisons has been hard hit, with at least 446 inmates and 248 staffers infected by Wednesday. Fourteen inmates have died of COVID-19, including six at the prison in Oakdale, Louisiana. Testing has been limited, and only three staffers at Miami’s Federal Detention Center, which mostly houses people awaiting trial, have contracted the virus.

More than 1,000 have been released across the country in recent weeks in response to Barr’s directive to place certain inmates on home confinement, according to the U.S. Bureau of Prisons. The bureau, however, won’t detail how many are being released from facilities in Florida, and how many requests have been received by wardens.

Still, stories of those released have emerged.

Miami’s Roslane Pichs, who pleaded guilty last fall to healthcare fraud, was released Wednesday from the low-risk facility at Coleman Correctional Institution. She still had more than a year left in her sentence — and did not have to write a letter to the warden.

Lawyers for Dalia Hernandez, convicted in a separate healthcare fraud case, sent a letter to the warden of Miami’s Federal Detention Center, asking for release because she is a breast cancer survivor whose weakened immune system makes her susceptible to COVID-19. The detention center never responded, so her lawyers went to court.

Prosecutors didn’t oppose the motion. U.S. Judge Cecilia Altonaga agreed and on April 2 ordered that she be allowed to finish her sentence on home confinement — with a 2-week self-quarantine from other family members.

The most high-profile case is that of sports agent Bart Hernandez, who gained his freedom when a Miami federal judge ruled he should be released for “compassionate” reasons. The reason: he is the only family member who can take care of his ailing mother living in New York City, the hot spot of the nation’s coronavirus outbreak.

Hernandez, who was serving a four-year prison sentence for smuggling Cuban baseball players to the United States, had asked the prison warden for “compassionate” release before the pandemic because his elderly mother is ailing. When the request was denied, his lawyers Jeffrey Marcus and Daniel Rashbaum went to federal court and soon added the coronavirus to their reasons for his release.

U.S. District Judge Kathleen Williams agreed, citing “extraordinary” reasons, and cut his sentence short by about a year. Hernandez had to remain in quarantine for 14 days at a North Carolina prison before being let out to drive to his mother’s home in Queens this week.

“Because of the coronavirus pandemic, [Hernandez] is currently the only potential caregiver for his 84-year-old mother, Eloina Hernandez, who suffers from degenerative ocular disease and cancer that renders her functionally blind,” Williams concluded in her order.

Marcus said other federal inmates like Hernandez should receive similar treatment.

“We are living through an unprecedented public health crisis and we need to think long and hard about who we continue to incarcerate,” Marcus told the Herald. “There are many non-violent offenders currently in prison who are not a danger to the public and can be safely confined on house arrest.”

There are other major federal cases in the pipeline.

Ill Cartel boss wants out

A prison warden refused to approve the release of a former Colombian cartel leader Gilberto Rodriguez-Orejuela, who is 81, has suffered bouts of cancer and is serving a 30-year sentence. With half of his sentence complete, he is now hoping a federal judge will allow him out of a federal prison in North Carolina to avoid catching COVID-19.

“Due to the COVID-19 pandemic, we are concerned that when such a virus spreads to the facility where he is incarcerated, it will be a death sentence to Mr. Rodriguez-Orejuela,” the inmate’s defense attorney, David O. Markus wrote in mid-March, citing a news story on a judge’s release of hundreds of non-violent inmates from a county jail in Ohio because of the coronavirus scare.

Days after Barr issued his coronavirus directive to the Bureau of Prisons, Markus alerted U.S. District Judge Federico Moreno about the significant development: “We do think it is worth noting here that the attorney general is urging that at-risk and vulnerable inmates, like Gilberto Rodriguez-Orejuela, be released”

Federal prosecutors expressed strong opposition.

Markus told the Miami Herald that Barr’s new policy underscores the emergency in the federal prison system.

“Prisoners and guards are sick and dying at a faster rate than anywhere else, even with solitary confinement conditions in effect for the foreseeable future,” Markus said Wednesday. “We need real change and fast, or I’m afraid that when the real numbers are reported, it will be a real nightmare.”

Another inmate, Italian citizen, 72-year-old Marcello Pigozzo, likely has little chance of being released.

Convicted in Miami, he is currently being held at a federal prison in Pennsylvania. He suffers from Type 1 diabetes, high-blood pressure, hypothyroidism, a heart murmur and a degenerative bone marrow condition. Pigozzo has only 18 months left to serve on his five-year sentence.

Pigozzo asked his warden for release. But his crime was downloading child pornography. Said defense lawyer David Weinstein: “Based on his offense of conviction, the government is objecting to his request for compassionate release.”

The warden has another three weeks to respond, as the coronavirus outbreak continues to grip the Northeast.