VERNON J. AUTREY, APPELLANT, v. UNITED STATES, APPELLEE.
No. 21-CO-282
DISTRICT OF COLUMBIA COURT OF APPEALS
December 14, 2021
Appeal from the Superior Court of the District of Columbia (1997-FEL-9413) (Hon. Robert A. Salerno, Trial Judge)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
(Argued November 19, 2021 Decided December 14, 2021)
Anne Keith Walton for appellant.
Paul Maneri, Public Defender Service, with whom Samia Fam and Alice Wang, Public Defender Service, filed an amicus curiae brief for appellant.
Eric Hansford, with whom Channing D. Phillips, Acting United States Attorney, and Chrisellen R. Kolb, John P. Mannarino, and Mark Hobel, Assistant United States Attorneys, filed a Cross-Motion for Summary Affirmance, for appellee.
Before GLICKMAN and DEAHL, Associate Judges, and NEBEKER, Senior Judge.
The trial court agreed with the United States and denied Autrey‘s motion, concluding that he is ineligible for compassionate release without addressing his dangerousness. Autrey appealed and moved for summary reversal, arguing that vаccination status is irrelevant to eligibility for compassionate release under the statute. In his view, his age and medical conditions place him at “high risk” for severe illness from COVID-19 regardless of his vaccination status. He maintains that “[i]t is the fact that the medical conditions exist—not the fact that they might be mitigated by something else like the vaccine or medication or some other type of medicаl care—that determines ‘extraordinary and compelling reasons’ for release.” The Public Defender Service for the District of Columbia filed an amicus brief in support of Autrey‘s motion. It elaborated that the “history and purpose of the [compassionate release] statute” show that “the D.C. Council has made clear that the only question for the trial court is whether Mr. Autrey‘s medical conditiоns make his risk of severe illness from COVID-19 higher than those who do not suffer from such medical conditions,” so that his vaccination status is irrelevant.
Shortly after Autrey moved for summary reversal on those grounds, this court decided Page v. United States, 254 A.3d 1129 (D.C. 2021). Page concerned a prisoner who had already been infected with COVID-19, and we held that the trial court could properly take the fact of a prior infection into account as diminishing his “risk of sеvere illness or death from COVID-19.” Id. at 1130. Page concluded, over dissent, that the Council “intended for trial courts to exercise ‘appropriate discretion to review the compelling facts of a case,’ . . . and thus afforded them discretion to consider any reasonable factor that directly impacts on the determination of whether an applicant is ‘at risk of severe illness or death from COVID-19.‘” Id. (quoting Report on Bill No. 23-127 before the Comm. on the Judiciary & Pub. Safety, Council of the District of Columbia, at 28-29 (Nov. 23, 2020)).
At Autrey‘s request, we then held this appeal in abeyance pending resolution of various petitions for en banc review, asking for reconsideration of the issue decided in Page and its apparent implications for those who are vaccinated. When those petitions were denied, we scheduled this mаtter for oral argument. At argument, in light of Page, Autrey and amicus retreated from their initial positions that receipt of a vaccine has no bearing on whether a prisoner has shown “extraordinary and compelling reasons” for compassionate release based on medical conditions that increase the prisoner‘s risk of severe illness or death from COVID-19. They now urge us to hold that the mere fact of vaccination is not, standing alone, fatal to a prisoner‘s claim that he is eligible for compassionate release.
We agree, and so it seems does the United States. Following Page‘s lead, we hold that a prisoner‘s vaccination status is a relevant and permissible consideration in determining whether a prisoner is “at risk of severe illness or death from COVID-19.” Page, 254 A.3d at 1130. But it is not the
The compassionate release statute lists six examples of “extraordinary and compelling reasons” for relief: two primary examples and four “other” illustrative examples in a catch-all provision.
In passing permanent legislation eight months later, the Council reduced the “elderly age” example‘s time-served requirement, but it did not amend the statute with different or additional examples warranting relief based on COVID-19.2 While the FDA had already approved Pfizer‘s vaccine for emergency use,3 the Council was aware that the District‘s judges had been extending the catch-all to prisoners whose “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[.]”4 The Council‘s decisions to (1) keep the number of enumerated examples limited, (2) retain a non-exhaustive catch-all provision, (3) leave operаtive terms undefined, and (4) express approval of trial court judges extending the catch-all beyond the “elderly age” criteria despite the imminent availability of vaccines, collectively reinforce the conclusion that the Council intended for the catch-all‘s “[o]ther extraordinary and compelling reasons” standard
to remain flexible in the face of changing circumstances and evolving scientific knowledge.5
for those able to receive and benefit from it. United States v. Broadfield, 5 F.4th 801, 803 (7th Cir. 2021) (Easterbrook, J.); see also United States v. Lemons, 15 F.4th 747, 751 (7th Cir. 2021) (endorsing Broadfield).
Things have changed quite a bit over the past several months, making that proclamation seem rather premature. Within weeks of Broadfield‘s sweeping declaration, COVID-19‘s so-called Delta variant rampaged through the nation, and by mid-September daily new cases and deaths had increased nearly tenfold frоm their summer nadir, substantially dampening any optimism. WORLDOMETER, supra. And in recent weeks, yet another variant, Omicron, has emerged surrounded by question marks regarding its transmissibility, severity, and how effectively current vaccinations guard against it, with few readily available answers.6 Just days ago, President Biden urged all already-vaccinated Americans “who have not yet gotten their booster shot” to “get one as soon as possible,” emphаsizing the Omicron variant
as particular cause for urgency.7 Those developments highlight the need for courts to
That flexibility requires trial courts to consider “any reasonable factor[,]” not just vaccination, in determining whether a prisoner has shown “an ‘extraordinary and compelling’ reason warranting a sentence modification.” Page, 254 A.3d at 1130. Those factors include, at least to the extent any litigant introduces it, evidence regаrding (1) whether a prisoner is unable to benefit from a vaccine due to being
immunocompromised, (2) whether a prisoner‘s medical conditions continue to render him acutely vulnerable to severe illness or death despite receiving some benefit from the vaccine, which may implicate vaccine efficacy data for certain subpopulations, (3) emerging research about “long COVID,” (4) the availability of booster shots to the extent they are necessary to prevent severe illness or death due to waning immunity, and (5) the rise of new virus variants to the extent they impair the efficacy of the existing vaccines in preventing severe illness or death. In short, trial courts must continue to “act[] independently with appropriate discretion to review the compelling facts of a case[.]” Report on Bill No. 23-127 at 28-29. Given how rapidly the above eligibility calculus can change, it would also be prudent for trial courts in each compassionate release case to decide whether the prisoner has demonstrated their non-dangerousness, regardless of any eligibility determination.8
That is not to say that a prisoner‘s receipt of a vaccine is just another factor оf undifferentiated significance. The United States points us to CDC statistics which show vaccination reduces one‘s risk of hospitalization or death from COVID-19 many times over.9 For example, at the July 2021 ebb before the spread of the Delta variant, unvaccinated persons in Autrey‘s age group were hospitalized at eight times the rate of vaccinated persons, although that disparity fell to a factor of six by the height of the Delta wave in September 2021.10 Similarly, unvaccinated persons in Autrey‘s age group died at twenty-seven times and thirty-four times, respectively, the rate of vaccinated persons.11 Even the study that Autrey and amicus highlight detailing the Delta outbreak at a Bureau of Prisons facility corroborates these wide disparities: unvaccinated prisoners were
vaccinated prisoners (3 of 42 versus 1 of 185), and the sole prisoner who died was unvaccinated.12 The vaccines have generally, at least to date, proven extremely effective at preventing severe illness or death.
We also do not mean to suggest that unsubstantiated claims of a vaccinated prisoner‘s residual risk of severe illness or death from COVID-19 can constitute “[o]ther extraordinary and compelling reasons” for compassionate release. All persons—vaccinated or not, incarcerated or not, with or without underlying medical conditions—are at some risk of severe illness or death from COVID-19; such is our plight. A vaccinated prisoner must show that he remains “acutely vulnerable” to those outcomes despite being vaccinated, and he must do so by a preponderance of the еvidence. See Bailey v. United States, 251 A.3d 724, 729-30 (D.C. 2021) (adopting preponderance standard as to dangerousness inquiry). While conclusive statistical evidence is not needed to satisfy the preponderance standard, a prisoner cannot rely on the mere possibility of residual risks without evidence that those risks actually exist, apply to the prisoner, and rise to the level of an acute vulnerability.
Expert opiniоns may well be necessary. But it is the prisoner‘s burden to demonstrate some acute vulnerability to severe illness or death from COVID-19 despite being vaccinated, not the government‘s burden to disprove it, and not the trial court‘s obligation to independently research the matter.13
Applying the above principles to this appeal, we perceive no abuse of discretion in the trial court‘s conclusion that Autrey failed to show the “extraordinary and compelling reasons” required for compassionate release. While Autrey has a host of comorbidities generally increasing his risk of severe illness or death from COVID-19, the government countered with evidence that his vaccination substantially mitigates his risk, and Autrey presented no evidence to the contrary. The trial court was well within its discretion in сoncluding that Autrey had not carried his burden of establishing his eligibility for compassionate release.14
However, we further note
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The Superior Court‘s order is affirmed.