Mistreatment of women inside a federal prison in Dublin, Calif., has been an open secret. It took years before prosecutors charged five people, including the warden and a chaplain, with crimes.
Now advocates for those survivors are asking for their freedom, preparing petitions under a program known as compassionate release, which allows people in prison to seek early release because of extraordinary and compelling circumstances.
Susan Beaty, a lawyer in Oakland, Calif., said she's spoken with more than three dozen people who experienced sexual abuse in the prison, now known for its notorious rape club.
"We've heard from a lot of survivors that staff intentionally targeted noncitizen women for abuse because of their added vulnerability," Beaty said. "I've heard so many stories about staff saying to people, 'I've looked in your file. I know you have an immigration hold. I know that once your sentence is up, you're going to be deported, and you're not going to be a problem for me.' "
For decades, it was up to the Bureau of Prisons to pre-approve requests for compassionate release. But BOP hardly ever used that power, even for people with terminal illness. So four years ago, Congress gave prisoners the option of asking a federal judge for relief.
"We believe that judges across the country should have as much discretion as BOP does to decide what's an extraordinary and compelling circumstance," said Kevin Ring, president of Families Against Mandatory Minimums, which advocates for people in prison and their families.
Courts have interpreted the issue differently, and the Supreme Court declined to weigh in, so it's up to the U.S. Sentencing Commission to make the final call. U.S. District Judge Carlton Reeves, the chairman of the panel, told NPR the issue of compassionate release "is probably the most important priority that we have" in the months ahead.
"The conflicting holdings and varying results across circuits and districts suggest that the courts could benefit from updated guidance from the Commission, which is why we have set this as an important part of our agenda this year," Reeves said in a news release Friday.
The Justice Department agreed that the panel should decide what counts as a compelling reason for early release, but DOJ hasn't yet proposed any boundaries.
Some prosecutors worry compassionate release could make it more difficult for women who agree to testify against their abusers because defense lawyers could call that a benefit and use it against them in cross-examination. DOJ is also calling on the sentencing panel to toughen punishments for prison workers who sexually abuse people in their custody.
Advocate Kevin Ring wants the Justice Department to step up and do more for survivors
"They were not sentenced to being raped in prison, and not only were they raped, they turned around at great cost and cooperated with the investigation of this warden and this chaplain," Ring said. "And you're going to say we have no power to give them relief, that they're supposed to heal inside a prison?"
Mary Graw Leary, a legal scholar at the Catholic University School of Law who focuses on victims and their rights, has not studied the misconduct at the prison in California. But, Graw Leary said, "incarcerated people are extremely vulnerable to victimization and we have to have processes in place to protect them from the power differential that is inherent in incarceration."
Graw Leary said it's important for wrongdoers to be held accountable when they fail to protect people in their custody. In fact, she said, all survivors of crime have a legal right to be protected and to have legal proceedings free from unreasonable delays.
Whatever the Sentencing Commission ultimately decides about the boundaries of compassionate release, Ring said it needs to leave room for extraordinary circumstances, including sexual violence in prison and the coronavirus pandemic.
A victims advisory group that advises the sentencing panel did not address the situation at the Dublin, Ca., prison.
But in a recent letter to the commission, the group raised concerns that many survivors don't get advance notice when offenders win early release, as the law requires. In its Sept. 24 letter, the group pointed out the wide disparities in how judges have treated petitions for compassionate release, with some expanding the program "well beyond its intended meaning."
Graw Leary, who chairs the victims advisory group, said, "What members of the victim community are trying to underscore is that compassionate release is a very narrow mechanism created to respond to a very narrow situation, and it should retain that identity."
The Sentencing Commission is expected to issue its plan on compassionate release early next year.