The coronavirus may infect NSA whistleblower Reality Winner while she is incarcerated at a women’s prison hospital. She has a history of respiratory illness that makes her exceptionally vulnerable. Yet, the United States government contends they have no record of Winner ever submitting a request for relief.

Prosecutors further suggest—even if the warden for Federal Medical Center Carswell received a request for release from Winner—that she did not follow the appropriate process so her appeal should be denied.

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 urged a federal court to release her 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 refused to grant Winner a hearing to present specific evidence on the risks posed to her health by the coronavirus.

In response to the U.S. government, Winner’s attorneys said [PDF] prosecutors presented “no grounds” to deny Winner’s request to “treat her motion for compassionate release as the life-and-death matter it (and COVID-19) really is.”

“Winner’s request for compassionate release presents compelling and extraordinary reasons to justify the relief she seeks,” they added. “Her good luck thus far is the only thing that separates her from the thousands of inmates in the Bureau of Prisons custody who have contracted COVID-19 on BOP’s watch.”

Her attorneys point out 57 people in BOP custody died and “paid the ultimate price for BOP’s egregious mishandling.”

The manner in which the government is bureaucratically seeking to thwart Winner’s appeal does not bode well for prisoners seeking to invoke the First Step Act to win compassionate release.

Prosecutors claim [PDF], “Winner alleged, without documentary support, that on April 8, 2020, she ‘submitted a written request to the warden of FMC Carswell in Fort Worth, Texas, asking that he petition the Bureau of Prisons for a reduction of her sentence.” [Note: Part of this is quoted from Winner’s appeal, but the government didn’t include an end quote.]

The government insists it inquired, and the BOP never received any request. “Only in her reply brief did Winner attempt to provide evidence showing she actually submitted a request.”

“None of the documents though were Winner’s  actual request or detailed what the basis of the request was. This is important because the date, as well as the content, of the request determines whether the defendant has appropriately exhausted her administrative remedies prior to filing in district court,” the government added.

As of May 1, according to BOP, seventy percent of the prisoners, who correctional staff choose to test, have tested positive for the coronavirus.

Reuters’ special report, “Death Sentence,” which documented the “hidden coronavirus toll in U.S. jails and prisons,” called attention to figures compiled by the U.S. government, which “appear to undercount the number of infections dramatically in correctional settings.”

Still, the government presses on. “Because Winner did not include among her reply brief’s exhibits a copy of her request to BOP, neither the district court nor this court can ascertain if she (as many inmates do) asked to be placed on home confinement rather than to be compassionately released.”

To this argument, Winner’s attorneys note they had Alison Grinter, one of Winner’s Texas-based attorneys, submit a statement to the appeals court under penalty of perjury that she helped Winner file a request “not once, but twice.”

“Reality’s BOP correctional counselor Bill Pendergraft provided Reality with the form as emailed to him by Ms. Grinter, and BOP staff-member Mary Gruszka assured Reality that she would hand-deliver the completed form to the warden.”

“Finally (nearly a month later and after necessitating an appeal), the government acknowledges what Reality knew all along—that BOP received the request(s) at least as of April 20, 2020. But the government claims it was not reviewed as a request for compassionate release. This is astounding given that the written request cited to the applicable compassionate release statute,” Winner’s attorneys declare.

“If the BOP is not aware that Reality is seeking compassionate release” under the First Step Act, “members of the press have had no trouble following along, and the district court, Reality, and the government have all briefed the issue under the compassionate release statute.” 

The government’s response fits in with a culture at the Justice Department under Attorney General Bill Barr, which has resulted in the release of only 1.8 percent of people in BOP custody during the pandemic.

On May 26, ProPublica reported the Bureau of Prisons has a secret policy that made it harder for prisoners to qualify for release.

A federal judge “accused officials at the Elkton Federal Correctional Institution in Ohio — the site of a deadly coronavirus outbreak cited by Barr in his order — of moving too slowly to release inmates and ‘thumbing their noses'” at a directive Barr issued on releasing prisoners into home confinement. The judge instructed the government to “expand the class of inmates eligible for home confinement by including inmates not only with minimum-risk scores, but also those said to have a low risk.”

The same day the U.S. Supreme Court rejected a request from the Justice Department to halt the lower court’s order. There are 837 “medically vulnerable inmates” potentially eligible for transfer.

Aside from the game being played by the BOP and prosecutors, Winner’s attorneys suggest one of the reasons the government is able to shiftily claim they never received a request is because the district court did not hold a hearing on evidence relevant to the case.

“The court could have heard from stakeholders at BOP and FMC Carswell about the BOP response generally and specifically at FMC Carswell,” her attorneys assert.

Winner’s legal team could have “introduced via subpoenaed documents or testimony Reality’s more recent medical records, which are (of course) in the possession, custody, and control of the government.”

“All of this is critical evidence the district court needed in order to actually, appropriately, and effectively exercise its discretion.”

Unfortunately, Judge Randal Hall was largely uninterested in exercising discretion and deferred to the arguments of prosecutors. He did not verify statements prosecutors made about the BOP’s coronavirus response.

Billie Winner-Davis, who is Reality’s mother, remains “deeply concerned about the irreparable damage that is being done” to her daughter’s “mental state.”

“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."