By Frank G. Runyeon

Law360 (April 2, 2020, 6:54 PM EDT) -- A New York federal judge on Thursday urged the Federal Bureau of Prisons to settle with vulnerable inmates seeking release from a Brooklyn facility because of the deadly threat coronavirus poses to them, instructing the agency to consider compassionate release.

U.S. Judge Rachel P. Kovner ruled that BOP should meet on Thursday with counsel for a class of vulnerable inmates locked up at the Metropolitan Detention Center in Brooklyn to see if they can strike a deal on the emergency petition that claims the prison has violated their Eighth Amendment protection against cruel and unusual punishment by failing to enact basic COVID-19 safeguards.

The settlement conference before U.S. Magistrate Judge Roanne L. Mann on Thursday was closed to the public, the judge's secretary told Law360. Judge Kovner ordered the parties to report back on their progress by the end of the day Friday.

A number of courts have granted "compassionate release based on claims — like those of petitioners here — that individuals' health conditions placed them at grave risk while confined during the COVID-19 epidemic," Judge Kovner said in her order, noting the government could agree "to adjudicate petitioners' compassionate-release requests in an expedited fashion."

"The litigants here have good reason to consider opening the courthouse door to fast review of such compassionate-release claims," the judge said, referencing the argument by inmates Hassan Chunn, Nehemiah McBride, Ayman Raybadi and Justin Rodriguez that BOP's slow response amid an epidemic is violating their civil rights because they, and other vulnerable inmates, are likely to die if they contract the coronavirus because of their fragile health.

The BOP "has good reasons to explore a resolution that would permit petitioners to quickly present compassionate-release claims; among others, the practical implications of a litigation loss on petitioner's Eighth Amendment claims could be significant," the judge pointedly noted.

The Metropolitan Detention Center has established there are 537 such vulnerable inmates, and a ruling establishing that the facility's response to the COVID-19 pandemic was so inadequate as to constitute "deliberate indifference" in violation of the Eighth Amendment would be striking precedent and likely have ramifications for those inmates' release requests.

But the judge noted that the bar for a violation of the Eighth Amendment was high, such a ruling on COVID-19 would be unprecedented and the inmates' "lawsuit is — at the minimum — a far less established avenue for COVID-19-based relief than compassionate release."

The inmates' case before Judge Kovner is just one among a flurry of legal requests to escape confinement at the prison. Counsel for the inmates describe the detention center as woefully unprepared to deal with the outbreak — social distancing is impossible in the facilities and inmates say even soap is unavailable.

During arguments on Thursday, inmates' counsel was alarmed by the revelation that only two other inmates were tested after five staff members and one inmate tested positive, asserting that many inmates with symptoms weren't being tested and that the lack of testing likely meant that many more people had the virus inside the Brooklyn prison.

In a separate case late Thursday afternoon, U.S. Judge Paul A. Engelmayer in the Southern District unveiled a decision that the rapper Daniel Hernandez, known as Tekashi 6ix9ine, should be released from MDC to home confinement amid COVID-19 concerns, ruling that he had the authority to grant the asthmatic rap star compassionate release after the BOP denied his application.

Judge Engelmayer previously said that when he sentenced the man for racketeering and other gang-related activity "the court did not know and could not have known that the final four months of Mr. Hernandez's sentence would be served at a time of a worldwide pandemic to which persons with asthma, like Mr. Hernandez, have heightened vulnerability."

"It is readily apparent — and the Court here finds — that the circumstances presented here are extraordinary and compelling so as to justify compassionate release in Mr. Hernandez's case," Judge Engelmayer ruled.

In yet another request for release, this one by MDC inmate Dr. Nkanga Nkanga, who is currently serving a three-year sentence for distributing opioids, U.S. District Judge Jesse M. Furman directed the man's attorneys to apply for relief in the Eastern District of New York but signaled that he sympathized with his plight, calling release "appropriate in light of the unprecedented threat posed by COVID-19."

"The stakes are great," said Daniel Parker, an attorney for Nkanga, commenting on the developments in the class of inmates' case. "These issues have to be resolved as quickly as possible and that's why we believe that Judge Kovner is moving on this quickly."

Nationally, the number of federal inmates with COVID-19 increased 31% between Wednesday and Thursday, from 57 to 75. Counsel for the class of inmates at MDC said Wednesday that number had jumped 800% in one week, arguing the rapid spread of the disease and the unsafe conditions at the prison justified releasing their clients.

In an effort to centralize information about the prison conditions Thursday, the Eastern District's Chief Judge Roslynn R. Mauskopf directed three federal prisons in New York City — MDC, Metropolitan Correctional Center and Queens Detention Facility — to report its COVID-19 infections, screening and testing protocols, staff and inmate test results, and mitigation efforts twice a week, on Tuesdays and Thursdays, to the court, federal defenders and the public via the court's website.

The first reports are due Friday at noon.

The class of vulnerable inmates is represented by Alexander A. Reinert and Betsy R. Ginsberg of the Benjamin N. Cardozo School of Law and Katherine Ruth Rosenfeld and O. Andrew F. Wilson of Emery Celli Brinckerhoff & Abady LLP.

The government is represented by James R. Cho and Seth D. Eichenholtz of the U.S. Attorney's Office for the Eastern District of New York.

The case is Chunn et al. v. Edge, case number 1:20-cv-01590, in the U.S. District Court for the Eastern District of New York.

Nkanga is represented by Benjamin Silverman, Daniel Parker of Parker & Carmody LLP and Joshua Jacob Horowitz of Horowitz Tech Law PC.

The government in Nkanga's case is represented by Jacob R. Fiddelman and Cecilia E. Vogel of the U.S. Attorney's Office for the Southern District of New York.

The case is United States v. Nkanga, case number 1:18-cr-00713, in the U.S. District Court for the Southern District of New York.

Hernandez is represented by Lance Lazarro and Dawn Florio.

The government in Hernandez's case is represented by Michael D. Longyear, Jonathan E. Rebold and Jacob Warren of the U.S. Attorney's Office for the Southern District of New York.

The case is United States v. Daniel Hernandez, case number 1:18-cr-00834, in the U.S. District Court for the Southern District of New York.

--Editing by Amy Rowe.

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