Drug War

Federal Prosecutors Argue COVID-19 Is Just 'One More Way to Perish in Prison'

Atilano Dominguez was serving a life sentence for marijuana offenses, and federal prosecutors tried to ensure he died behind bars.

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Federal prosecutors unsuccessfully tried to argue this week that an 80-year-old inmate serving a life sentence for marijuana offenses shouldn't be released because COVID-19 is just "one more way to perish in prison."

U.S. District Judge Donald Graham disagreed and ordered Atilano Dominguez, who was 27 years into his life sentence, to be released from federal prison on Tuesday, over the objections of the Miami U.S. Attorney's Office and the Bureau of Prisons (BOP). The U.S. government opposed his petition for compassionate release on the grounds that Dominguez, who's mostly confined to a wheelchair due to advanced arthritis in both knees, was a recidivism risk and that his life sentence was imposed with the knowledge that he could die of any number of illnesses in prison.

Dominguez was one of thousands of federal inmates who applied for compassionate release—a policy allows elderly and terminally ill inmates to go home ahead of schedule—in response to the COVID-19 pandemic. In late March, Attorney General William Barr directed the BOP to use compassionate release, home confinement, and other measures to get elderly and at-risk inmates out of federal prison. Despite the release of more than 7,000 thousand inmates, though, the rollout of Barr's directive has been maddeningly inconsistent for inmates and families.

Dominguez was sentenced in 1994 to life in prison on two charges of conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. His sentence was upgraded to a mandatory life sentence after prosecutors filed a draconian "three strikes" enhancement against him based on previous cocaine offenses. Graham wrote in his order releasing Dominguez that the judge at Dominguez's original sentencing noted it was probably "too severe," but there was nothing the judge could do because of the mandatory sentence.

Dominguez' advanced age and long list of serious medical conditions—including diabetes, hypertension, and congestive heart failure—certainly fit the qualifying conditions for inmates at risk for COVID-19. But federal prosecutors said those were not "extraordinary and compelling reasons" to grant him relief, because he was expected to die in prison anyway.

"The government does not contest that the Defendant's age and medical condition render him vulnerable to serious consequences if he were to contract the illness," the Miami U.S. Attorney's Office argued in a motion opposing Dominguez's petition. "However, the Defendant's sentence of life imprisonment always contemplated that the Defendant could perish in prison. The existence of one more way to perish in prison, specifically COVID-19 in addition to heart disease, cancer, stroke, aneurysms and myriad other ailments that afflict the aged, does not alter the appropriateness of the Defendant's incarceration."

Before 2018, that would have been the end of the line for Dominguez. There used to be no judicial review available for inmates applying for compassionate release, leaving inmates at the mercy of an arbitrary, inscrutable, and cruel prison bureaucracy. Justice Department records obtained by the criminal justice advocacy group FAMM in 2018 showed that at least 81 federal inmates had died since 2014 while waiting for the government to review their applications. 

However, after the passage of the FIRST STEP Act in 2018, federal inmates can now take their pleas to a judge if the BOP rejects their applications.

Graham ruled in Dominguez's favor, finding that "there is no authority that persons sentenced to life imprisonment are somehow precluded from being granted compassionate release or are subject to a higher standard of proof." He was also not convinced by the argument that an 80-year-old quadruple bypass survivor with arthritic knees was a significant safety risk to the community.

For criminal justice groups, cases like this boil down to basic human decency. "Title 9 of the U.S. Attorney's Manual governs criminal proceedings, and there is no provision there that requires you to be an asshole," FAMM president Kevin Ring says.

Ring is not the only one. Earlier this year, a federal judge harshly rebuked the U.S. Attorney's Office in San Francisco for pressuring defendants into plea deals that would waive their rights to compassionate release under the FIRST STEP Act, calling the practice "appalling cruel."

Reason reported last year on the case of Steve Brittner, a former federal inmate who was diagnosed with metastatic brain cancer. Federal prosecutors opposed his compassionate release petition because they said his life expectancy exceeded his release date. In essence, Brittner wasn't dying fast enough to qualify.

Then there's Angela Beck, who suffered a year of potentially fatal medical neglect waiting for a breast cancer diagnosis and treatment. A federal judge granted Beck's petition for compassionate release, finding that the neglect Beck suffered "likely reached the level of a constitutional violation," and that if she remained in BOP custody she would face "a substantial likelihood of substandard medical care for her life-threatening disease."

So far, there have been 124 federal inmate deaths and two BOP staff deaths due to COVID-19. The first inmate to die was a drug offender.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. You really can’t make this shit up

    http://twitter.com/zerosum24/status/1309557138667307009?s=19

    Breaking: Oregon Gov. Brown declares emergency in #Portland as Proud Boys rally approaches this weekend.

    1. About a week ago, the Proud Boys announced that they were going to host a massive rally in Philadelphia and then simply never showed up.

      Antifa showed up, hungry for blood. So, they fought each other tooth and nail, and ran around beating random old people in the streets.

      I am getting the sense that this may be another one of those situations, which would be hilarious.

      1. See this is when I miss the great Don King. He would have organized the two groups to hold the event in the Nevada desert and sold it on pay-per-view for all to enjoy.

        Only in America!

    2. In a press conference announcing the decision, Brown cited a pattern that has repeatedly played out in the city when far-right demonstrators hold rallies to provoke counter-protesters and soon devolve into violent street brawls.

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      1. The fascist Proud Goys don’t deserve a platform for their hate speech. We need to stop fascism with any means necessary! We can get them fired from their jobs, banned from major banks and credit card companies, kicked out of their apartments or homes, and harassed on social media until they do the world a favor and commit suicide.

        1. http://twitter.com/stillgray/status/1309588967109439490?s=19

          Unlikeable cretin.

          Joe Biden to the troops: “Clap for that, you stupid bastards.”

          1. “Stupid bastard” is a common folksy slang for friends in the state of Delaware. Don’t blow this out of proportion. Trump’s mismanagement and utter incompetence has lead to the deaths of over 200,000 American citizens. Who’s the real demented candidate?

            1. Where in the Constitution is the President given the authority to deal with infectious diseases?

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              2. Really, that’s Trump fan bois are hanging their hat on these days?
                Lets try this, as part of:
                “promote the general Welfare”
                and the infamous interstate commerce clause,
                The federal government can set some standards on health and health care.
                The president is the head of the executive branch.

                Furthormore, he is the head of the defense (which normally means enemy armies, but could also be defense against any foreign disease. Remember, the dimwits call it the “China Virus”

                1. Just wondering; is there a particular brand of boot you prefer to lick, or is whatever boot happens to be in front of you at the time good enough?

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                2. It must promote the general welfare within the confines of its enumerated powers. If the President just carries out the will of the Congress shouldn’t you be blaming them? Being the CIC means he can control the health system? How very totalitarian of you. Weak sauce, weak sauce.

            2. “Stupid bastard” is certainly not a common folksy slang for friends in the state of Delaware. It is used nationwide to describe people like you.

          2. http://twitter.com/JackPosobiec/status/1309591453375639552?s=19

            You can see the troops all looking around awkwardly when Biden starts yelling and calls them ‘stupid b*stards’

    3. http://twitter.com/X2_T17/status/1309523344866390017?s=19

      This mans dying wish was to speak to Donald Trump on the phone… and President Trump honored that wish.

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      1. Why do you capitalize media . . . other than ignorance in general and illiteracy in particular, you bigoted slack-jaw?

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  2. Coughing in prison?

    “A death sentence, to be sure — cruel and unusual punishment.”

    Anal rape in prison?

    “Stop being a homophobe.”

  3. I don’t get it. Life in prison doesn’t imply dying in prison?

    1. It does but for weed? What I don’t get is the extent they want to keep him jail, while rapists get released.

      1. So why pimp the irrelevant Coof angle?

        1. I’d want my lawyer to argue whatever it took to get me out. It could be for an infected toe nail for all I care, the guy’s crime is weed.

          1. Reason bro not the lawyer

  4. 124 out of how many million incarcerated. You want to fix incarcerations for non violence let’s talk. But don’t be a prick and use covid as your excuse.

    1. It’s definitely a weird way of framing the objection. If your argument is that Dominguez simply shouldn’t expire in prison, make that argument. But arguing that it’s somehow uniquely unjust that he expires from COVID as opposed to choking on a ham sandwich or coronary failure is… strange.

      Or, as I say below, simply argue that it’s unjust for him to die in prison at all.

      1. It does look like a weird framing. I guess the argument comes down to this:

        Graham ruled in Dominguez’s favor, finding that “there is no authority that persons sentenced to life imprisonment are somehow precluded from being granted compassionate release or are subject to a higher standard of proof.”

        In other words, if other prisoners are being released on compassionate release because of Covid-19, then the fact that this one has a life sentence cannot be used as an argument to deny such release.

        It’s beside the issue in court, but why is the BOP so vehemently opposed to compassionate release?

        1. It’s beside the issue in court, but why is the BOP so vehemently opposed to compassionate release?

          Probably because having prisoners locked up is their bread and butter? I don’t know. But it’s certainly reasonable to ask that if there’s a non-violent 80 year old inmate knocking on death’s door, that compassionate release should be in the bargain regardless of whether or not said 80 yr old is dying of ___________.

          1. Isn’t being paid from tax money/printer go BRRR their actual bread and butter? I mean are they seriously worried that if they let some old people out of prison that they will lose their jobs or funding?

            Anyway, yeah, I agree that it doesn’t really matter what he’s dying of.

      2. So should he be attacked in prison, get poisoned, or catch some disease; no reason to render medical care because he was going to die anyway? Pretty nihilistic. I could see serial killers using the same logic.

        The other part to being a prisoner is that they are all wards of the state entitled to its protection, not to mention the possibility of clemency.

        If the state can not manage some degree of protection against communicable disease, well, the are in a bind.

        Something something cruel and unusual punishment.

        1. Clear out the prisons for flu season!

          1. If there was only something else you could do for the flu. Like a vaccination or something…

  5. “The government does not contest that the Defendant’s age and medical condition render him vulnerable to serious consequences if he were to contract the illness,” the Miami U.S. Attorney’s Office argued in a motion opposing Dominguez’s petition. “However, the Defendant’s sentence of life imprisonment always contemplated that the Defendant could perish in prison.

    This is a fair and reasonable statement. It’s the sentence that’s the problem. I think we can agree the sentence was unjust. But in the context of ‘life in prison’, that’s the expectation: You’ll die in prison. If you argue that COVID-19 is somehow a uniquely unjust way for him to die, then you’re essentially arguing that if he died of complications from Diabetes, everything would be a-ok.

    The sentence is itself certainly draconian and arguably unjust- and stems from a whole list of societal problems. But once sentenced to life in prison.. the presumption is in fact that you’ll… you know, spend the rest of your life in prison. There’s no special language that says it’s a just outcome if you die of a heart attack, but an unjust outcome if you die of the Chinee flu.

    1. They have a point, but I do think the risk level factors in, and whether the risk is generic or enhanced by being in prison. Life imprisonment is supposed to be a lesser punishment than death. To take an extreme example, suppose a prison is flooding. Do you insist that the lifers be left to drown on the theory that it’s just another way to die?

      If you concede the flooding case, what about a pneumonic plague epidemic in the prison with a 98% fatality rate?

      Of course the COVID risk is a lot less, and maybe in this case being out isn’t a whole lot safer than being in. That would depend on conditions in the specific prison.

  6. “Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison”

    And they’re wrong because…?

  7. Probably shouldn’t have been there for an MJ offense, but it was a life sentence.

      1. At least Reason didn’t call dousing a small child in gasoline and setting it alight with a lit joint as a ‘marijuana violation’.

        1. Are you referencing something specific or is that just a joke?

          1. A partial joke. Reason has, in the past written articles where they claimed a draconian sentence for what were written off as minor-sounding violations, but when you googled the case, there was a bunch of very ugly stuff going on in parallel which drove the more draconian sentence.

            I was merely pleased to find out that there wasn’t a more ugly subtext when I read further into this case.

      2. Probably. To be sure.

  8. OT: Ron Paul suffers stroke

    My thoughts go out to the Paul family. Hoping for a speedy recovery.

    1. Prayers. Ron Paul is the reason I’m no longer a liberal.

  9. O/T – AYFKM?

    On Thursday, the governor had this say: “The first question is, is the vaccine safe? Frankly, I’m not going to trust the federal government’s opinion. New York State will have its own review when the federal government has finished with their review and says it’s safe.”

    Andrew Cuomo Has A New Plan To Kill New Yorkers

    1. It’s more important to signal your views on The Trump Administration here. Try to see the bigger picture Abattoir…

      1. You’re right. What’s 60,000 innocent lives to a socialist, after all.

    2. CUOMO (for woodchipper)/2020

  10. Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison’

    Go back to the outrageous headlines based on lies because when you tell the truth I can’t stay awake through the subhed.

  11. “the judge at Dominguez’s original sentencing noted it was probably “too severe,” but there was nothing the judge could do because of the mandatory sentence.”

    No, there *was* something (s)he could have done, namely, resign. Maybe there’s many important reasons to keep your job and impose the sentence, but don’t pretend there aren’t options. (S)he *could* have decided to leave the bench – and presumably take up a lucrative private practice – rather than impose a sentence (s)he deems unjust.

  12. The marijuana convictions are THE reason why the feds should have allowed this guy to leave prison (or Trump should pardon).

    Had he been convicted of 1st degree murder, the feds would have a reasonable argument to keep him in jail.

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  15. “Atilano Dominguez was serving a life sentence for marijuana offenses…”

    Thank you, Joe Biden.

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