Autrey v. United States
| Docket Number | 21-CO-282 |
| Decision Date | 14 December 2021 |
| Parties | Vernon J. Autrey, Appellant, v. United States, Appellee. |
| Court | D.C. Court of Appeals |
Argued November 19, 2021
Appeal from the Superior Court of the District of Columbia (1997-FEL-9413) (Hon. Robert A. Salerno, Trial Judge)
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.
Appellant Vernon Autrey appeals the trial court's denial of his motion for compassionate release. See D.C. Code § 24-403.04; D.C Law 23-274, tit. XII, § 1203(b) (Apr. 27, 2021). Autrey who is serving a sentence of twenty years to life for a non-fatal shooting in 1997, sought compassionate release on the ground that he satisfies the statute's two core requirements: that he is both eligible and non-dangerous. D.C. Code § 24-403.04(a). More specifically, as concerns his eligibility, he argued that his age (45) and medical conditions (obesity, diabetes, hyperlipidemia, hypertension and asthma) rendered him acutely vulnerable to severe illness or death from COVID-19 and thus constitute "[o]ther extraordinary and compelling reasons" for a modified prison term under the statute's catch-all provision. D.C. Code § 24-403.04(a)(3). The United States countered that Autrey is ineligible for compassionate release because he received two doses of the Pfizer-BioNTech vaccine, which it maintains substantially mitigates his risk of severe illness or death from COVID-19 notwithstanding his medical conditions.
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 vaccination 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 medical 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 conditions 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 severe 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. ().
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 matter 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 end all, be all of that inquiry, which requires a fact-specific analysis of the prisoner's condition(s) and the evolving scientific evidence regarding how effective vaccination is likely to be in the particular case. We now elaborate on Page's conclusion that the Council intended for the catch-all to afford trial courts the "discretion to review the compelling facts of a case" rather than bind them with rigid criteria amid an unprecedented and often unpredictable pandemic. Id.
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. D.C. Code § 24-403.04(a)(1)-(3). Although first enacted as emergency legislation at the pandemic's onset, [1] the statute mentions COVID-19 as a basis for eligibility in only the catch-all's "elderly age" example. D.C. Code § 24-403.04(a)(3)(B). In addition to age and time served, the "elderly age" example seemingly limits relief to a prisoner who "[s]uffers from a chronic or serious medical condition related to the aging process or 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)(iii). The statute does not define the operative terms "serious medical condition," "acute vulnerability," or "severe medical complications."
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 operative 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]
The past several months have shown the need for such flexibility and underscored how hard-and-fast rules in this area can quickly become outdated. When we decided Page in July 2021, infections and deaths attributable to COVID-19 were near a pandemic-low in the United States: specifically, deaths hovered around 300 per day and new detected infections were around 30, 000 per day. See Reported Cases & Deaths by Country: United States, Worldometer, www.worldometers.info/coronavirus/country/us/; https://perma.cc/6Q9G-4ZK3. At the time, there was considerable cause for optimism about the effectiveness of vaccines and the prospects for substantially containing COVID-19's spread and reducing mortality rates, leading one court to declare (just one day before we issued Page) that "the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an 'extraordinary and compelling' reason for immediate release" 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 (6th 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 from 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," emphasizing the Omicron variant as particular cause for urgency.[7] Those developments highlight the need for courts to be flexible in responding to the ever-changing realities on the ground.
That flexibility...
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