NSA whistleblower Reality Winner appealed a federal court decision, which rejected her request for compassionate release from Federal Medical Center Carswell in Fort Worth, Texas.

“The entire basis for Reality’s motion—and so many like hers—is that she cannot afford to wait until she is removed from FMC Carswell in a stretcher, or worse, before she is afforded relief,” Winner’s attorneys declared [PDF].

Winner’s legal team further contended the appeal may force the Eleventh Circuit Court of Appeals to clarify how courts throughout the United States should apply the First Step Act. That could help numerous individuals seeking release during the coronavirus pandemic.

“A favorable decision will pave the way for other prisoners to seek relief in accordance with the clear intent of the First Step Act,” according to her attorneys.

Winner pled guilty in 2018 to one count of violating the Espionage Act when she disclosed an NSA report to The Intercept. She believed the report contained evidence that Russian hackers targeted United States voter registration systems during the 2016 election.

She has served more than half of her 63-month sentence, and her attorneys believe she should be released to home confinement to serve the remaining 19 months of her sentence.

But Judge Randal Hall sided with the Justice Department on April 24 and contended the “medical prison,” where Winner is incarcerated, is “presumably better equipped than most to deal with any onset of COVID-19 in its inmates.”

Hall argued Winner had not “carried the burden of demonstrating that her specific medical conditions” placed her “at a risk substantial enough to justify her early release.”

The motion for an appeal, which was filed in the Eleventh Circuit Court of Appeals, contends the district court’s ruling was “erroneous” because it was “based on sheer speculation, ignored the contrary evidence, and denied Reality the ability to [present] additional supporting evidence at hearing.”

“In holding that Reality failed to meet her burden to demonstrate ‘extraordinary and compelling’ circumstances justifying her release, the trial court went out of its way to speculate, without any evidence at all, that FMC Carswell is ‘better equipped’ to handle the global pandemic.”

Furthermore, Winner’s attorneys insisted the court “ignored the evidence provided by Reality that BOP’s response on the whole, and FMC Carswell’s response in particular, is and has been, woefully inadequate.”

Reacting to the appeal, Billie Winner-Davis told Shadowproof, “I hope that the [appeals] court will seriously consider releasing my daughter, Reality Winner, from prison at this time.” 

“Every day I fear for her health and safety. I fear that she may actually become sick with COVID-19, and I fear that she will not have the necessary care.”

In the decision against compassionate release, Hall wrote, “The court would be remiss not to point out Winner’s incongruous complaint that she is at greater risk because of the preventative measures undertaken by the prison in response to COVID-19.” 

Hall bought into the prosecutors’ argument that it did not make sense for Winner to complain about restrictions in the facility, when they are supposed to protect her. Yet, Winner’s attorneys made it clear that restrictions on “prison life” are “counter-productive” and may be impacting her mental and physical health.

For example, prisoners are kept in their cells with other inmates for up to eleven hours per day. Recreational activities are canceled, however, inmates still pile into a mess hall for bologna sandwiches twice a day.

“Nobody, inmates or staff, is wearing masks. At times, the facility operates without adequate hand sanitizer or soap. Public use areas like the telephones are not cleaned between uses. And prison staff cross-pollinate with all of the inmates without taking any extra precautions.”

“Indeed, the BOP ‘response’ makes matters worse for Reality and threatens to turn her 63-month sentence into a death sentence. She should be allowed to serve the remainder of her sentence—approximately 19 months—in home confinement with her family who will love and take care of her,” Winner’s legal team stated.

The district court latched on to the fact that Winner had not exhausted “administrative remedies” when it rejected her appeal. But as her attorneys pointed out, “Courts have found requiring prisoners to exhaust such remedies is ‘futile and/or inapplicable in view of the exigency of the global pandemic.'”

In other words, expecting a prisoner, like Winner, to exhaust remedies before hearing her complaint puts any prisoner who believes they are in danger at further risk.

On May 13, Amnesty International USA called for Winner’s release from FMC Carswell.

“Given the totality of the circumstances, including the time she has already served, the lack of a public interest defense granted to her, and the risk posed by COVID-19, Winner should be released as soon as possible,” the human rights organization declared.

Amnesty International USA additionally noted, “Prisons are dangerous hotspots for COVID-19. The conditions in which prisoners are held, often in overcrowded facilities and without proper access to sanitation, makes it impossible for detainees to effectively take preventive steps against the disease. In the U.S., as of May 12th, at least 2,818 people held in federal prisons have tested positive for COVID-19 and 50 people held have died.”

Winner-Davis shared that she is “deeply concerned about the irreparable damage that is being done” to her daughter’s “mental state.”

“Over the last several weeks, I have heard my daughter tell me, ‘Mom, I am not okay,’ and as her mother, this tears me apart.”

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."