COVID-19 has caused serious problems for every sector of the country. Governments are struggling to achieve a delicate balance between public health and public safety. Because of crowded prison conditions that contribute to COVID-19, one population group—inmates with underlying conditions—has been treated so generously that critics have labeled early release policies the “COVID Discount.” But the Ninth Circuit denied this “discount” to a gang member with asthma because his criminal history made him ineligible for compassionate release.

In a Memorandum Opinion, not for publication, a three-judge panel of Circuit Judges William C. Canby, Jr., A. Wallace Tashima and Jacqueline Nguyen affirmed the decision of Presiding Judge Lee H. Rosenthal of the Eastern District of California on May 25. They ruled that defendant-appellant James York (aka York Dog) would not get compassionate release because the District Court “reasonably concluded” that York’s criminal history and behavior showed that he posed a “danger to the community” that “did not support relief.”

According to court documents, James York, 41, is a leader of the Dog Pound Gang in Fresno. He is one of 28 people arrested in a 2016 “multi-agency gang sweep” conducted by the Fresno police and other law enforcement agencies. York and his fellow gang members were part of a conspiracy that sought to retaliate against members of a rival who had shot at them. York was also involved in sex trafficking as well as manufacturing and using stolen credit cards. He was sentenced to 14 years in federal prison for “conspiracy to commit murder in aid of racketeering, using a facility of interstate commerce to promote prostitution, and possession of an unregistered firearm.”

Because he was incarcerated in federal prison, York was a candidate for compassionate release under policies that originated with the “Coronavirus Aid, Relief and Economic Security Act (CARES Act)” which was signed into law by ex-President Trump in March 2020. A memo from Attorney General Bill Barr in March 2020, titled “Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic,” explained that under the Act, home confinement would be permitted for “some at-risk inmates who are non-violent and pose minimal likelihood of recidivism.” It also said that both the prisoners and prison personnel might be safer and more protected from COVID-19 at home because prison conditions were “highly contagious.”

Barr advised decision-makers to review “the totality of circumstances” for each individual seeking home confinement. Factors should include the “age and vulnerability” of the inmate according to guidelines issued by the Centers for Disease Control and Prevention, the security level of the current prison facility, the inmate’s conduct in prison, the inmate’s plan for re-entry that should prevent recidivism and maximize public safety, and the danger the inmate poses to the community.

Barr’s memo also listed the “underlying conditions” that would make the inmate more susceptible to an adverse reaction to COVID-19. These would include conditions such as diabetes, heart disease, obesity, and being elderly. With fewer inmates, it would also be easier to achieve more social distancing.

Attorney General Merrick Garland is continuing Barr’s policies and is also allowing those released to remain at home and serve out the remainder of their terms.

Not everyone is happy about this. In January 2021, Senator Tom Cotton (R-AK) accused Garland of “ignoring the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.” He said the Bureau of Prisons should return inmates to prison and follow the clear limits of the law. He termed the early release policy the “COVID discount.”

As of April 2022, the Bureau of Prisons reports that 275 prisoners and seven staff members have died of COVID-19. By that month, Forbes reports that over 7,000 minimum-security prisoners were transferred to home confinement, while 3,761 active cases were found in federal prisons.

The Ninth Circuit relied on the Bureau of Prisons policy memos as well as the factors cited in 18 U.S. Code Section 3553 (a) called “Factors to be Considered in Imposing a Sentence.” These include the nature and circumstances of the offense, the history and characteristics of the defendant, the seriousness of the offense, as well as the need to protect the public from further crimes.

York argued that the District Court had abused its discretion when it denied his motion for home confinement which should have been granted because of his asthma. He said that his disease “puts him at severe risk from COVID-19” and that his “rehabilitative efforts in prison and release plan show that his home confinement would satisfy the sentencing factors cited in USC Section 3553(a). The District Court disagreed and found York’s total circumstances “did not justify compassionate release.”

The Ninth Circuit concluded that “The District Court reasonably concluded that in light of York’s criminal history and history of violating conditions of supervision, as well as the danger he posed to the community,” the (U. S. Code) section did not support relief.” It also found no abuse of discretion under precedent, which determined that discretion can only be abused if a court’s decision is “illogical, implausible, or not supported by the record.” That did not happen here.

The District Court’s decision was therefore affirmed.