Three women in the Greenbrier Valley who contracted COVID-19 while in federal custody died within a week of each other in early January.
Two press releases were issued on January 19 by the U.S. Department of Justice, Federal Bureau of Prisons, informing the public of the deaths. All three women previously submitted motions for compassionate release based on health issues that increased their risk of injury or death from COVID-19. The Bureau of Prisons (BOP) recently announced that two women died of COVID-19 while in the custody of the Alderson Federal Prison Camp (FPC Alderson). A third woman incarcerated at FPC Alderson also passed due to COVID-19 shortly after she was granted compassionate release.
As explained by the BOP website, FPC Alderson is “a minimum security federal prison camp” for “female offenders” in the Mid-Atlantic Region. Both press releases note FPC Alderson currently holds 677 female inmates. As of January 20, there are 106 inmates and five staff with “confirmed active cases” of COVID-19, according to the BOP website.
On January 21, the Judiciary Committee in the House of Representatives began to look into the issue of COVID-19 deaths, illness, and compassionate release conditions. The hearing brought lawyers and physicians to give testimony, their investigations revealing stories similar to the three Alderson deaths.
BREE EBERBAUGH
On June 26, 2020, Bree Eberbaugh submitted a handwritten letter to Senior United States District Judge David A. Faber.
“I am writing to request your consideration for compassionate release … based on my underlying medical conditions and my high risk of susceptibility to contracting COVID-19 as a result,” Eberbaugh wrote. “… On May 18, 2020, pursuant to the BOP guidelines, I submitted a request for compassionate release to my warden at FPC Alderson. On May 22, 2020, my request was denied. … To date, there have not been any requests that have been granted at this facility.”
Eberbaugh highlights why she was afraid of contracting the virus in the facility, stating “your honor, my concern is that the BOP, specifically FPC-Alderson, is ill-equipped to properly respond to the COVID-19 pandemic. At FPC Alderson, we cannot social distance, we do not get fresh air daily until we are going to pick up our one hot meal each day for 15 minutes, and the open air living conditions make it impossible to protect ourselves from the spread of the virus once it arrives. … The medical center here has two doctors for 750 women. … We encounter approximately 10 to 20 staff members in and around our cubes. These individuals go on and off the compound daily.”
The first press release explained “Ms. [Bree] Eberbaugh was a 30-year-old female who was sentenced in the Southern District of West Virginia to a 54-month sentence for possession with intent to distribute quantities of fentanyl and/or aiding or abetting [the] same. She had been in custody at FPC Alderson since July 31, 2019.”
On July 20, 2020, Faber ordered the United States government to respond to her request. Former United States Attorney Michael B. Stuart filed a response, explaining the motion should be denied as Eberbaugh had not “fully” exhausted all “administrative” remedies. This would include an appeal to the warden and, if that is denied, an appeal to the “Bureau of Prison’s Administrative Remedy Procedure.”
“The thirty days that allow for Defendant to seek relief from the court was not triggered because the Warden did respond in a timely manner to Defendant’s request,” reads the response. “Without full exhaustion, as required by statute, the court does not have statutorily granted jurisdiction – therefore no relief may be granted in this instance.”
Even if this requirement was waived, Stuart continued, the motion written by Eberbaugh should still be denied.
“The ‘mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release’ (United States v. Raia),” reads the filing. “… Defendant’s motion is entirely based on the fear of the possibility of COVID-19 entering the Alderson prison camp. … Defendant also makes claims about the imminence of outbreak that are empirically unprovable and unfounded. … Because compassionate release is
statutorily forbidden from derailing the goals instantiated by sentencing, this motion should be
denied.”
On August 18, 2020, Faber denied the motion, explaining “even if defendant’s medical conditions place her at higher risk of complications if infected with the virus, there are no cases at FPC Alderson. The [sentencing] factors also weigh against granting [the] defendant’s motion. An approximate 75 percent reduction in sentence would not reflect the seriousness of the offense, provide just punishment, be a sufficient deterrent to others in the community, and would result in unwarranted sentencing disparities.”
However, Faber did note “if thirty days have passed since the BOP has received a request, inmates are not required to fully exhaust administrative remedies before asking a court for compassionate release.”
On August 21, 2020, Eberbaugh wrote a handwritten letter to the judge, requesting “assistance with obtaining an attorney … to assist me with pursuing compassionate release or home confinement.” Faber denied the request on April 8, 2021, citing the denial of the first motion for compassionate release. This is the final filing in her case before her death.
“[On] December 13, 2021, … Eberbaugh tested positive for COVID-19 at the Federal Prison Camp (FPC) Alderson in Alderson, West Virginia, and was placed in medical isolation,” reads the BOP press release. “Institution staff monitored Ms. Eberbaugh’s condition and provided treatment. [On] December 22, 2021, Ms. Eberbaugh’s condition worsened and she was subsequently transported to a local hospital. [On] January 14, 2022, Ms. Eberbaugh, who had long-term, pre-existing conditions … was pronounced deceased by hospital personnel.”
The death notice in the Pocahontas Times For Eberbaugh noted “in lieu of flowers, memorial donations may be made to the Pocahontas County Animal Shelter, 410 Second Avenue, Marlinton, WV 24954.”
REBECCA MARIE ADAMS
The second BOP press release begins “Ms. [Rebecca Marie] Adams was a 59-year-old female who was sentenced in the Middle District of North Carolina to a 42-month sentence for failure to collect pay/over payroll taxes. She had been in custody at FPC Alderson since January 22, 2021.” As explained by a later order in her case, Adams was sentenced “for willful failure to truthfully account for and pay over taxes withheld from the pay of employees.”
Adams first filed with the warden for compassionate release before she could be exposed to COVID-19 on February 24, 2021, citing her age, diabetes, obesity, a January 2021 shoulder surgery, essential hypertension, sleep apnea, and arthritis in the back, hips, and hands. On June 28, 2021, Adams filed a motion in federal court for compassionate release through attorney James B. Craven III, citing the same “serious medical issues,” and stating her concern for COVID-19 exposure.
The motion reads “in truth, the BOP does not appear interested in her very worrisome health issues. They seem overworked, understaffed, and simply anxious to get on to the next person in line ASAP, and to save money on treatment.” A supplementary filing on July 8, 2021, notes “most BOP staffers at FPC Alderson do not wear masks,” that “food portions have been reduced significantly [leading to the loss] of 41 pounds so far,” that “the warden has advised them to drink from the bathroom sink” should bottled water not be available, and that “inmate bathrooms have black mold and drain bugs, with zero ventilation,” and the one fresh restroom “is kept closed except for when it is on display for outside inspectors.”
On June 28, 2021, Senior United States District Judge N. Carlton Tilley Jr. entered an order on the motion.
“As the Government stated in its response, “[c]ritically, Adams filed the motion without review of her BOP medical records,’” reads the order. “Had Adams and her counsel reviewed those medical records, they would have realized that the records [do not] support … many of the specific allegations about Adams’ care.”
The dispute resided in proper care and complicity with the recommendations of BOP physicians for her treatment. Adams alleged she was “denied” a hip replacement, denied requests to “skip the cafeteria meals” because of hip pain, an allegation that a “Dr. Wright” took her off “all medications” until he was removed, that she is not given medication for osteoarthritis, and more. According to the order, several of these claims do not align with her medical records, which “show a pattern of non-compliance with medications.” In addition, the order notes there is no evidence Dr. Wright was “removed” from the facility.
However, the judge’s order does not dispute that Adams had any of the conditions listed in the release request. The order states Adams’ BMI is “over 40” while in custody and that she had “post-op” visits in January of 2021.
“In sum, Adams does suffer from type 2 diabetes, hypertension, depression, and obesity, among other conditions,” reads the order. “On February 19, 2021, Dr. Wright [of BOP] evaluated Adams … diagnosed her current conditions as unspecified depressive disorder, unspecified chest pain, hypertension, hyperlipidemia, and type 2 diabetes; noted her epilepsy/seizure disorder was in remission; and issued medication orders.”
Using the discrepancy between Adams’ description of her medical treatment allegations and those of trained medical professionals, Judge Tilley continued on to say “Adams also makes alarming allegations about the living conditions at FPC Alderson. But, she provides no evidence of these conditions. Considering that the record [of] evidence so clearly fails to support her allegations about her medical care, coupled with her fraudulent conduct underlying her … conviction, there is nothing from which the Court can conclude that her allegations about the conditions at FPC Alderson are credible.”
Ultimately, her release was denied.
“Adams cannot expect the court to release her based, at least in part, on the risk of severe illness from COVID-19 without evidence that her doctors advise against her being vaccinated,” reads the denial order. “Instead, she admits that she remains unvaccinated by choice due to her purported distrust of the BOP; yet, as explained above, that mistrust is not supported by the record before the Court. … She has not met her burden of showing an extraordinary and compelling reason for relief.”
According to the BOP, on “December 11, 2021, … Adams tested positive for COVID-19 at the Federal Prison Camp (FPC) Alderson in Alderson, West Virginia, and was placed in medical isolation. Institution medical staff monitored Ms. Adams’ condition and provided treatment. [On] December 15, 2021, Ms. Adams’ condition worsened and she was subsequently transported to a local hospital. On … January 12, 2022, Ms. Adams, who had long-term, pre-existing conditions … was pronounced deceased by hospital personnel.”
JUANITA CARRIE HAYNES
The issue of COVID-19 safety in FPC Alderson was also raised by families, friends, and former inmates in a downtown Alderson protest on January 5 to demand better conditions for the women inside FPC Alderson. The protesters called on the prison for better communication, more comprehensive quarantines, Home Confinement releases for eligible inmates, and more issues around the COVID-19 pandemic.
During the protest, Charleston resident Patricia Haynes told The West Virginia Daily News her mother had contracted COVID-19 twice, saying “my mom was about gone because of them, [the prison system]. … She got COVID a year ago. She filed to be released [to home confinement] then, [but] the warden turned her down. The first time [she had COVID], they put her in a hospital and she stayed there two days. She died then, but they brought her back. … The reason she did not have her shot is because she’s allergic to … penicillin, she’s allergic to flu shots. … She was scared to take it. … They wouldn’t let me speak to the doctor at all.”
Juanita Carrie Haynes, Patricia’s mother, was serving time at FPC Alderson when she contracted COVID-19.
According to an order filed in the Southern District of West Virginia on January 3 by Senior United States District Judge John T. Copenhaver Jr., Haynes had served approximately three years of her nine year sentence for distributing methamphetamine when “Haynes tested positive for COVID-19 on December 15, 2021.”
The order explains Haynes had been a “cooperative and model inmate,” using FPC Alderson’s educational programs. The felony leading to her sentence “was primarily fueled by her lengthy addiction to opioids and methamphetamine” and her criminal history beyond the sentence was “largely insignificant,” aside from another one-year sentence years before.
On December 19, Haynes was transferred to Greenbrier Valley Medical Center (GVMC) where she was treated “for COVID-19 pneumonia and was discharged on that same date.”
On December 23, Haynes moved for a compassionate release to home confinement or supervised release “based on her COVID-19 diagnosis, age, the length of sentence she has served to date, and the fact that she suffers from” additional health problems that are “risk factors for COVID-19.”
Haynes then filed a request in federal court “for … release to home confinement with the Warden of … FPC Alderson on Friday, December 17, 2021, but as of this filing has heard no response” and that Haynes “was supposed to go to the hospital again for breathing issues, but her daughter was told there weren’t enough guards available for transportation and security.”
Also on December 23, Haynes was again hospitalized in the GVMC Intensive Care Unit “due to breathing issues associated with COVID-19.”
As explained in another case by United States District Judge David A. Faber, compassionate release can be granted if the defendant shows “(1) extraordinary and compelling reasons warrant a sentence reduction; (2) [they are] not a danger to the safety of others or the community; and (3) the reduction satisfies the sentencing factors” in the United States Code.”
“Ms. Haynes is currently suffering from a life-threatening case of COVID-19 and is unfortunately showing no signs of improvement,” reads the January 3 order. “As far as the court is aware, she has been sedated on a ventilator since December 26, 2021, unable to maintain oxygen levels above fifty percent. Additionally, ICU staff have advised that if she is to recover from her current state, she will require a long-term tracheostomy. In light of these facts, the court concludes that Ms. Haynes’ current medical status amounts to a serious medical condition constituting extraordinary and compelling reason.”
The order modified her sentence to “time served” and imposed “an additional year to Ms. Haynes’ supervised release term for a total of six years, with the first four years to be served on home confinement.”
She did not serve the modified sentence.
“Juanita Carrie Shaffer Haynes, 57, of Charleston, passed away on January 8 , 2022 as a result of COVID.” reads the obituary published by Keller Funeral Home in Dunbar. “She was a wonderful strong woman. She would put a smile on your face every time you saw her. She loved spending time with her beloved husband, kids, family and friends! She will be missed so much, but always remembered!”
The order also notes “the United States noted that the BOP is currently paying for Ms. Haynes’ medical treatment and should she be released ‘financial responsibility for her bill will fall to her and her family.’”
“We had to sign a thing that said I had to take care of all her doctor’s bills,” said Patricia Haynes at the protest. “She would have made it if they left her in the hospital the first time.”
CONGRESS CONSIDERS COMPASSIONATE RELEASE
On Friday, January 21, the House of Representatives Committee On The Judiciary, Subcommittee On Crime, Terrorism, And Homeland Security, held a hearing specifically on “The First Step Act, The Pandemic, and Compassionate Release.” Although the committee did not hone in on FPC Alderson specifically, it took a broad look at all BOP federal facilities.
Congressman Jerrold “Jerry” Nadler, Chair of the Judiciary Committee, explained that, as those with power over federal inmates, “we must do more to protect individuals in [our] custody. … Nobody deserves to die from this disease, and we have a duty to ensure basic protections for those in our custody.” In order to do just that, Congresswoman Sheila Jackson Lee (D, Texas) explained Congress “included, in the CARES Act, an additional mechanism to allow BOP to release prisoners to home confinement, reducing the prison population, and reducing the number of COVID infections among prisoners and staff. Although using overly restrictive criteria, BOP released 1,000s of prisoners under the Cares Act, [who were] reconnected with family, found employment, and have not reoffended.”
The increased Home Incarceration guidelines used by the BOP did not extend to every non-violent offender at an elevated risk for COVID-19, such as Haynes, Adams, and Eberbaugh. Among those who testified, Alison Guernsey, Clinical Associate Professor of Law of the University of Iowa who oversees the federal criminal defense clinic, highlighted what her investigation has discovered using public records and Freedom of Information Act requests.
“In almost every case where an individual has died while seeking compassionate release, if you pull up the motions that they filed with federal court, you will see that the prosecutors oftentimes argue, in almost all cases, … that the conditions that the person suffers from aren’t the type of conditions that would arise to the level of an extraordinary and compelling reason for sentence reduction,” said Guernsey.
Why would this be significant? Because this same information is included in press releases announcing the person’s death due to COVID.
“Those press releases would always say, as a justification for the death, that the person suffered from chronic conditions that the CDC had listed as making them more likely to be vulnerable to severe illness or death,” Guernsey continued. “The doublespeak coming out of the Department of Justice is quite striking. You have prosecutors arguing in court that the Bureau of Prisons is just fine and you have the Bureau of Prisons stating [in] press releases, after the death happens, [that there is] nothing to see here, in fact, this person was already ill.”
Similar to the case of Juanita Haynes, Guernsey also highlighted that “federal courts are granting compassionate release when people are on their deathbeds. They will literally be released so that they don’t die in chains. Those numbers are never attributed to the total death count at the Bureau of Prisons.”
The hearing had split focus between the two factions of Congress. Democrats, in general, focused on compassionate release of people incarcerated by BOP with increased risk factors if they contract COVID-19, while Republicans, in general, expressed concern for those incarcerated in the aftermath of the failed insurrection on January 6, 2021. On questioning from Congressman Tom Tiffany (R, Wisconsin) for these 60 federal inmates, Guernsey agreed with the Republicans’ concerns.
“I do want to highlight that I think that the things that are happening to some of the January 6 defendants are truly appalling, but I don’t think that they’re isolated to the January 6 defendants,” said Guernsey.
The issue, in some BOP facilities, allegedly extends back to symptom reporting. Homer Venters, Adjunct Clinical Associate Professor for the NYU School of Global Public Health, explained his investigation “revealed a disturbing lack of access to care when a new medical problem is encountered. [In] the Metropolitan Detention Center in Brooklyn, New York, it quickly became apparent that not only were reports of COVID-19 symptoms being ignored, but that the sick call requests people filled out were being destroyed, leaving no trace of their original reports. Systemic issues like this meant that when COVID-19 arrived, incarcerated people relied on a broken system of sick call to seek care.”
Venters called for a systemic, independent review of the entire BOP as to COVID-19 deaths and care systems, saying he had found “significant strengths and deficiencies in the BOP responses” and that “to date,” no such review has been conducted.
“Every other sector of healthcare in the United States has independent and professional health organizations reviewing the quality of care, but in the BOP, … we leave those crucial assessments to law enforcement to review its own provision of healthcare,” Venters said. “In order for the BOP to improve its overall health services, and prepare for the next infectious disease outbreak, we must have an independent assessment of COVID-19 related deaths among people in BOP and marshals custody. We also must create an independent health authority to oversee and report on all aspects of health care inside the BOP facilities.”
Similar to the calls of the protesters in Alderson on January 5, one former inmate asked the House committee for more consideration for home incarceration for nonviolent offenders who are at increased risk for COVID-19.
“When I left prison, I was fitted with an ankle monitor that tracks my every move,” explained Gwen Levi, who was granted home confinement the day before her 75th birthday. “I could not leave the house to go anywhere, even the grocery store, without permission from my case manager at the halfway house. Being on home confinement is much better than prison, but it is still worlds away from being free.”
