The 11th United States Circuit Court of Appeals ruled against NSA whistleblower Reality Winner’s request for compassionate release from a federal prison, even though COVID-19 remains a pervasive threat.

Narrowly, the appeals court decided [PDF] a lower court did not “abuse its discretion” when it refused to grant Winner a hearing to present evidence about her specific medical conditions that put her at risk at Federal Medical Center Carswell.

“It is true that the court ruled, without holding an evidentiary hearing, that Ms. Winner had not shown ‘that her specific medical conditions under the particular conditions of confinement at FMC Carswell place her at a risk substantial enough to justify her early release’ and that she ‘is in a medical prison,” the appeals court declared.

The court added, “This ruling, while succinct, does not constitute a ‘fail[ure] to apply the proper legal standard’ or a failure ‘to follow proper procedures in making its determination.'”

“We are devastated,” Billie Winner-Davis, Reality Winner’s mother, stated. “It seems like there is so much bias against my daughter,” and, “Even though I had tried not to get my hope up, I am still crushed by this denial.”

Winner filed the appeal on May 12. She urged the 11th Circuit to reverse a district court ruling and release her into home confinement.

Her attorneys warned, “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 tested positive for COVID-19 in July, as confirmed cases in Carswell spiked over 500. However, the appeals court showed no sense of urgency as the virus spread in the facility.

Finally, on November 17, the 11th Circuit convened a hearing and granted Winner’s attorney an opportunity to make the case that a district court had wrongly ruled against her.

The 11th Circuit has a notorious reputation when it comes to appeals from prisoners. In June, Supreme Court Justice Sonia Sotomayor stated, “The 11th Circuit is significantly out of step with other courts.”

According to the New York Times, the appeals court tends to require that prisoners use a form that is so small one is lucky to fit 100 words. That submission can be the basis for rulings on appeals without “even an individualized response from the government.” 

The 11th Circuit acknowledged that Winner “suffers from depression and an eating disorder, both of which affect her ability to ‘cope with stress and uncertainty, such as incarceration and the invasion of a novel disease.'”

“For Ms. Winner, her ‘routines allow her to cope and hold the things she is unable to control together.’ But as a result of the lockdown of the federal prison system on account of COVID-19, she cannot engage in her regular routine and is left with ‘no way to exercise any coping mechanism for the stress of her own underlying conditions,'” the appeals court further noted.

It did not dispute that Winner’s eating disorder was likely exacerbated in “unhealthy and even dangerous ways” as a result of a lockdown at Carswell and “worries about COVID-19.”

“Ms. Winner says prison is ‘a particularly dangerous place’ for her during the pandemic because of the close living quarters, continual transfer of prisoners in and out, and the lack of supplies such as hand sanitizer,” the appeals court recognized.

But the 11th Circuit showed indifference to her complaint by ignoring confinement conditions during a pandemic. It did not contemplate whether conditions were “extraordinary and compelling” enough to warrant her release under the First Step Act and instead focused on a technical aspect of the judicial process.

Earlier this year, Winner submitted an application for a pardon. It does not seem likely that Trump will pardon Winner, yet there is a campaign among her supporters to convince President-elect Joe Biden to free her.

“My daughter continues to struggle with the reality of COVID-19 and total lockdown conditions within the prison. Everyday the prison staff find new ways to torment her, whether by restricting her ability to exercise or rejecting her mail,” her mother shared.

Winner is eligible for release in November 2021. She 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 was detained after her arrest in 2017 and has served a majority of her 63-month sentence.

Kevin Gosztola

Kevin Gosztola

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