Page v. United States

254 A.3d 1129

Don D. PAGE, Appellant,

v.UNITED STATES, Appellee.

No. 21-CO-167

District of Columbia Court of Appeals.

FILED—July 22, 2021

EASTERLY, Associate Judge:

After considering medical records and expert testimony presented by Mr. Page, who fell ill from COVID-19 while his motion for compassionate release was pending, the Superior Court determined that "Mr. Page's medical conditions increase his risk of severe disease if he contracts the coronavirus again." Even so, the court determined Mr. Page had not established an extraordinary and compelling reason to make himself eligible for a sentence reduction under D.C. Code § 24-403.04(a)(3) (2021 Supp.), because he had not shown that he was likely to be reinfected while in prison.³ The Superior Court was wrong to require Mr. Page to make such an additional showing. The compassionate release statute, which was enacted in response to the ongoing COVID-19 pandemic, contains no textual foundation for requiring prisoners to show that they are likely to be infected with COVID-19 while in a congregate, carceral setting. And the legislative history refutes the notion that the Council of the District of Columbia intended to restrict access to compassionate release in this manner. It reveals instead that the Council presupposed a likelihood of infection with COVID-19 for all D.C. prisoners (who are housed in federal prisons all over the United States) and was singularly concerned about the consequence of infection—specifically, the possibility that individuals serving terms of imprisonment would inadvertently suffer a harsher punishment of severe illness or even death because of their vulnerability to the disease. The majority thus affirms a misreading of the statute and oversteps its bounds by erecting an additional barrier to compassionate release in contravention of the will of the Council.

Between March 11 and March 13, 2020, the World Health Organization declared COVID-19 a global pandemic,⁴ the President of the United States declared a national emergency,⁵ and the Mayor of the District of Columbia declared a public health emergency in D.C.⁶ A month later, on April 10, 2020, the Council of the District of Columbia passed emergency legislation that, among other things, authorized Superior Court judges to grant compassionate release to D.C. prisoners who faced serious risk of severe illness or death from COVID-19.⁷ In the months that followed, the Council renewed this authority in emergency and temporary legislation.⁸ And at the end of December 2020, the Council passed permanent legislation that largely mirrored the preceding emergency and temporary legislation⁹ and conferred compassionate release authority on Superior Court judges. This permanent legislation was signed by the Mayor on January 13, 2021.

In its permanent form, the statute dictates that compassionate release "shall" be granted to D.C. prisoners who demonstrate both their eligibility and nondangerousness under D.C. Code § 24-403.04(a). In addition to defining two eligibility groups with specificity—prisoners with a terminal illness and prisoners over age 60 who have served at least 20 years in prison, D.C. Code § 24-403.04(a)(1)–(2) —the statute includes a catchall provision for prisoners who demonstrate "extraordinary and compelling reasons" for modification of their sentence, D.C. Code § 24-403.04(a)(3). This catchall category "includ[es]," inter alia , those prisoners who are over age 60, have "served the lesser of 15 years or 75% of [their] sentence," and "[s]uffer[ ] from a chronic or serious medical condition ... that causes an acute vulnerability to severe medical complications or death as a result of COVID-19." D.C. Code § 24-403.04(a)(3)(B).

The Superior Court correctly determined that, under this catchall provision, a D.C. prisoner can demonstrate eligibility for compassionate release by showing that they are at risk for severe illness from COVID-19, regardless of age or time served. This understanding of D.C. Code § 24-403.04(a)(3)(B) is both (1) supported by its plain text, see Aboye v. United States , 121 A.3d 1245, 1249 (D.C. 2015) ("[T]he participle including typically indicates a partial list." (internal quotation marks omitted)); Edwards v. United States , 583 A.2d 661, 664 & n.3 (D.C. 1990) ("Where general words [precede or] follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the ... specific words." (footnote omitted) (quoting 2A N. Singer, Sutherland Statutory Construction § 47.17, at 166 (4th ed. 1984))), and (2) confirmed by its legislative history. In the report addressing a bill to make what had been emergency and temporary legislation permanent, the Committee on the Judiciary and Public Safety approvingly noted that since the compassionate release statute had been enacted

Superior Court judges have consistently interpreted the "[o]ther extraordinary and compelling reasons" language

in D.C. Code 24-403.04(a)(3) as including relief to defendants whose age, medical conditions, or other circumstances increase their vulnerability to death or severe illness from COVID-19, for example, even if they do not meet the definition of "elderly" based on their age or length of imprisonment, and even if their medical conditions do not rise to the level of "terminal" or "debilitating."

Report on Bill No. 23-127 before the Comm. on the Judiciary & Pub. Safety, Council of the District of Columbia at 27–28

(Nov. 23, 2020) (alteration in original). The Committee Report then favorably cited more than a dozen Superior Court orders granting compassionate release on this basis, id. at 28 n.118, and endorsed these rulings as examples of Superior Court judges "appropriate[ly] [exercising their] discretion to review the compelling facts of a case," id . at 28–29.¹⁰

Employing this legislatively-approved construction of the catchall provision, the Superior Court found that Mr. Page was at risk for severe illness from COVID-19. But the court did not end its eligibility analysis there. Instead, the court went on to separately address Mr. Page's "[l]ikelihood of reinfection." While the court did not "discount the possibility that ... Mr. Page may be one of the unlucky" prisoners at the BOP facility where he was then incarcerated who could be reinfected, the court concluded that "the possibility of reinfection in this case is low." Considering both Mr. Page's "higher risk ... of serious consequences should [he] become reinfected with COVID-19" and the "relatively low risk that he will become reinfected," the court concluded that Mr. Page was ineligible for compassionate release.

The Superior Court erred by denying Mr. Page's motion for compassionate release by requiring him to make an additional showing beyond that which is contemplated in the compassionate release statute, regarding a circumstance the Council had already legislatively validated.

As the majority of the division concedes, ante at 1129–30, the Superior Court's consideration of the likelihood of infection (or reinfection) with COVID-19 has no foundation in the text of the District's compassionate release statute, see Davis v. United States , 397 A.2d 951, 956 (D.C. 1979) ("We must first look at the language of the statute by itself to see if the language is plain and admits of no more than one meaning.").¹¹ The language of the compassionate release catchall contains no reference to vulnerability to infection from COVID-19. Rather, the inclusive catchall references only a prisoner's vulnerability to the consequence of infection, in the form of severe adverse health effects or death, see D.C. Code § 24-403.04(a)(3)(B)(iii).

Further, the legislative history makes it pellucidly clear that the Council, in drafting this statute, operated from the premise that it "is beyond doubt and could hardly be overstated" "that individuals in jails and prisons are particularly vulnerable during this pandemic," see Mitchell v. United States , 234 A.3d 1203, 1211 n.13 (D.C. 2020).¹² The Council thus made vulnerability to the consequences of infection with COVID-19 its exclusive concern.

The Council's presupposition that D.C. prisoners were at increased risk of infection from COVID-19 was evident from the outset of its discussion of the compassionate release legislation. At a legislative meeting on April 7, 2020, Councilmember Charles Allen quoted a Washington Post article that described jails and prisons, like nursing homes and cruise ships, as "perfect incubators" for COVID-19, and warned:

The real danger is in doing nothing, on the belief that what takes place in penal institutions is less critical or somehow separate from society — or that the lives of convicts are worth less than those of free men and women. In fact, prisons and jails are porous places; their walls do nothing to impede the spread of disease. The failure to contain the virus on the inside, for whatever reason, will accelerate its proliferation on the outside.¹³

Similarly, Councilmember Kenyan McDuffie observed, "we know what happens when you have density, when people are living on top of one another basically."¹⁴

When the Judiciary Committee issued its report supporting passage of permanent compassionate release legislation seven months later, in November 2020, councilmembers reaffirmed their presupposition that D.C. prisoners are at a higher risk of contracting COVID-19 by virtue of being incarcerated. Now they had hard data to back up their earlier-expressed concerns. The Committee Report cited statistics about the number of infections/deaths in prisons and jails across the country (at the same time highlighting the inadequacy of the BOP's reports regarding D.C. prisoners). Report on Bill No. 23-127 at 24–25. After noting that black and latinx individuals "experience higher rates of disease and illness overall" and are significantly more likely to contract COVID-19 in the community, the Committee...