Court Finds Extraordinary and Compelling Circumstances to Release “Colorful” Rapper with Respiratory Health Issues in Light of COVID-19 Pandemic

Daniel Hernandez, the flamboyant, rainbow-haired rapper better known by his stage name Tekashi 6ix9ine, was compassionately released from federal custody earlier this month under the federal courts’ growing appreciation that the COVID-19 pandemic is an “extraordinary and compelling circumstance” warranting a sentence reduction under 18 U.S.C. § 3582(c) if an inmate has a severe underlying health issue. By law, courts have the authority to grant compassionate release to persons who are incarcerated due to “extraordinary or compelling circumstances” such as imminent death or serious incapacitation. See 18 U.S.C. § 3582(c)(1)(A)(i).

In December 2019, Mr. Hernandez was sentenced to two years in prison for racketeering and, at the time of his release, had already served approximately 17 months of that sentence and was expected to be released in August of this year. Mr. Hernandez, who suffers from severe asthma, was initially denied release under 18 U.S.C. § 3582(c) because the statute permits a court to reduce a prisoner’s sentence only after the inmate has exhausted their remedies through the Bureau of Prisons (“BOP”). At the time of his motion and the court’s order, Mr. Hernandez had not made any request for relief from BOP. Immediately following the court’s denial, Mr. Hernandez made a request for release through BOP that was denied for unique administrative reasons: Mr. Hernandez had been serving his sentence at a private facility and not at a regular BOP facility. Therefore, the BOP was unable to evaluate his request. After BOP’s denial of his application, Mr. Hernandez made a second, proper application with the court.

In granting Mr. Hernandez’s application, the court found that “[t]he COVID-19 pandemic is extraordinary and unprecedented in modern times in this nation” and “presents a heightened risk for incarcerated defendants like Mr. Hernandez with respiratory ailments such as asthma.” The court went on to note the unique situation for incarcerated individuals because “a high-risk inmate who contracts the virus while in prison will face challenges in caring for himself.” Thus, faced with the real risk of medical complications, the court found that the combination of Mr. Hernandez’s asthma and the ongoing pandemic constituted such “extraordinary and compelling reasons” to reduce his sentence, release him from federal custody, and allow him to start serving his term of supervised release in home confinement.

Of additional interest, in its order releasing Mr. Hernandez from confinement, the court noted that a number of additional federal courts across the country had engaged in similar sentence reductions beginning in March related to the growing pandemic. Courts across the country are now recognizing that the risk of contracting the virus in prison may satisfy the requirement under 18 U.S.C. § 3582 that an inmate demonstrate an “extraordinary and compelling reason” warranting a sentence reduction. Inmates with certain health risks may be entitled to seek early release from prison provided that (as shown in Mr. Hernandez’s case) they exhaust administrative remedies by seeking relief through the BOP in the first instance.

Compassionate Release for Aging Inmates Under the First Step Act

In United States v. Applewhite, No. 6:08-cr-60037-MC (Jan. 13, 2020), the U.S. District Court for the District of Oregon discussed new standards for obtaining compassionate release under 18 U.S.C. § 3582(c)(1)(A), as modified by the recently passed First Step Act. When an 80-year-old federal inmate’s health began to seriously deteriorate as he aged, he petitioned the Court for a reduction in his sentence that would allow for his early release. The First Step Act allows an inmate to file a motion directly with a district court for compassionate relief after exhausting all administrative remedies. The district court may then reduce the inmate’s sentence if the inmate is at least 70 years of age, has served 30 years in prison on the offense for which they were sentenced, is determined not to be a danger to the safety of the community, and if extraordinary and compelling reasons warrant the reduction.

In Applewhite, the Court found the inmate’s health concerns were an extraordinary and compelling reason to consider him for release. The inmate suffered from high blood pressure, Hepatitis C, and pre-glaucoma. He also had an inoperable aortic aneurysm and had been diagnosed with chronic obstructive pulmonary disease. However, the Court ultimately held that he could not be released because he remained a danger to the community. That conclusion was based on the fact that the inmate had been sentenced for robbery seven times over a span of fifty years, that five of those seven robberies had been committed while on supervised release (and within six months of being released from prison), and that the most recent robbery had taken place when the inmate was nearly 70 years old.

Where other similarly-aged inmates suffer from serious medical conditions but do not have a comparable prior history which might lead to a danger finding, compassionate release under the First Step Act may be an option. Additionally, as the nation continues to come to terms with the public health threat posed by COVID-19, it is important to recognize that prison populations face heightened risk due to confined conditions. According to health experts, individuals aged 65 years and older are also a particularly high-risk demographic. As a result, the risk of contracting the virus in prison may satisfy the requirement under 18 U.S.C. § 3582 that an inmate demonstrate an “extraordinary and compelling reason” warranting a sentence reduction. Compassionate release through the First Step Act may therefore be one route to relief for older inmates at risk of contracting COVID-19, provided they are able to meet the statute’s other eligibility requirements.

Existing Laws May Support Early Release from Oregon Prisons Due to COVID-19

Oregon law (ORS 144.126) allows the Board of Parole and Post-Prison Supervision to “advance the release date of a prisoner,” if the Board determines that “continued incarceration is cruel and inhumane and that advancing the release date of the prisoner is not incompatible with the best interests of the prisoner and society and that the prisoner is: (a) Suffering from a severe medical condition including terminal illness; or (b) Elderly and permanently incapacitated in such a manner that the prisoner is unable to move from place to place without assistance of another person.”

Similarly, according to state regulations (OAR 255-040-0028) “the Board [of Parole and Post-Prison Supervision] may consider reductions in prison terms when any inmate, regardless of whether they committed their crime before or after November 1, 1989 is suffering from a severe medical condition.” The regulations do require “a medical authority’s report, which attests to [the] validity of the condition with reasons why continued incarceration would be cruel and inhumane[,]” as well as various other recommendations provided by the Department of Corrections. OAR 255-040-0028.

As the COVID-19 pandemic rages on, there will almost certainly be cases in prisons throughout the state of Oregon. The inability to practice social distancing in prison combined with questionable sanitization practices heighten the risk of exposure to the virus. In the event a prisoner or staff member tests positive for COVID-19, the above laws and regulations may provide a basis for a symptomatic prisoner (who is already serving a sentence) to obtain early release, particularly if they have underlying health conditions that put them at risk of complications from the virus.