ROUND ROCK, Texas (KXAN) — For now, all Kendrick Fulton can do is wait.
“I’m just sitting here, waiting,” Fulton said, as he looks straight into his cell phone’s camera, which records his message. “For the US Marshals to come pick me up.”
Fulton just finished an overnight shift as a truck driver delivering sodas in the Austin area. He still has his uniform on in the video.
“Had a misunderstanding with a family member,” he continued. “They called, said I was no longer welcome at the house. So here I am…let’s see how it goes.”
Fulton, who KXAN first interviewed in 2021, is one of more than 9,000 non-violent inmates released from federal prison due to COVID-19 concerns as part of the CARES Act, according to the Federal Bureau of Prisons. Far from “free,” for many, the future is still uncertain. Right now, it’s still unclear if any will be granted clemency or if they’ll eventually have to return to prison to serve out their sentences once the pandemic is over – something critics argue would be cruel.
Fulton, who was released in September 2020, was re-arrested on Feb. 17. For three weeks he was locked up behind bars even though he had not been charged with any new crimes. The “misunderstanding” he referred to in his video was with his sister, Demetra Underwood Roane. She tells KXAN Fulton did nothing wrong.
“This is his mail that’s been stacking up since he’s been gone,” Underwood Roane said as she showed KXAN the pile of letters that have accumulated in her brother’s absence.
Fulton had been living with Underwood Roane and her husband at their Round Rock home. She loves her brother but said after more than a year the living situation put a strain on her marriage. She admitted she asked him to move out after an argument.
“It’s been hard, still, maintaining my marriage, my family here,” she said. “I felt like 14 months, and he’s making great money, and he could afford his own place.”
Fulton has an ankle monitor and, despite being out in the community and working a full-time job, is still a federal prisoner. He has a decade left to serve on a 33-year sentence for a non-violent drug charge. Under new drug sentencing laws, his punishment would have been much less severe if he was sentenced today.
During the pandemic, low-level offenders, like Fulton, were released to community confinement to help prevent the spread of COVID-19 in our nation’s prisons. Underwood Roane said it didn’t feel real when she was told about her brother was getting out.
“He called us the day of the release,” she said. “He said, ‘Y’all it’s really true. It’s happening. I’m coming home.’ We couldn’t believe it. It was almost like a dream.”
Since his release, Fulton obtained his Commercial Driver’s License and has worked full-time as a truck driver delivering sodas. Last month, he and his sister agree that there was a “family disagreement.” Underwood Roane said she called Fulton’s supervisor overseeing his community confinement. She said she wanted Fulton to move out — assuming, she said, that the BOP would immediately transfer him to a family member’s house in Dallas.
That was the ultimate plan, anyway, both agree, since Fulton has other family there along with a job offer.
“We just thought he would be able to relocate because that was going to be the plan eventually,” said Underwood Roane, describing her decision as “a moment of frustration.”
When she found out he would be re-arrested, she said she called prison officials and told them she changed her mind. She said she wanted him to stay.
“I guess they just took that as if, ‘OK well it’s an unstable environment now, so we’re going to remove him,'” she said.
If she had known that was going to be the outcome she said she “never, never” would have asked her brother to leave. Her pleas to prison officials to allow him to stay were ignored, she said.
The end result leaves her feeling terrible, she said.
Eleven days before his re-arrest, Fulton told KXAN he was free but “with a big asterisk.”
‘Trouble is easy to get in, harder to get out of’
Fulton was taken to the McLennan County Jail in Waco where he remained locked up without any new charges or any idea if he would be transferred back to prison or let out.
He was released on March 10. Three weeks after his arrest. He told KXAN: “I’m home!!”
Days before, Fulton spoke to KXAN from behind bars. At the time, he said he was in the dark about what would happen next.
“I’m just waiting, man,” Fulton said, sighing. “Hoping that things get worked out…hoping the worst doesn’t happen, which is me being sent back to [federal] prison. So, I’m just hoping things work [out].”
Speaking to KXAN on an application that allows inmates to video conference, Fulton said he wasn’t angry about the situation. He just didn’t understand it.
“To have…a little misunderstanding, a simple argument, leads me [to] being reincarcerated, or sent back to prison, it’s kind of crazy,” he said. “But, you know, trouble is easy to get in, harder to get out of. You get yourself in these situations, this is kind of what happens.”
Fulton doesn’t blame his sister, he said, but noted has not spoken with her since his arrest.
“I’m not mad or anything like that,” said Fulton. “Hopefully, it just brings light to my situation and informs others of what I’m going through. And, what others like me are going through.”
“How long can you hold somebody?” Underwood Roane asked. “Or, keep somebody detained for something they didn’t even do?”
It’s a question criminal justice reform advocates are also asking.
‘How long can you keep somebody detained for something they didn’t even do?’
Community confinement can also apply to people “temporarily housed at a local county jail awaiting transfer to another facility” or to a new home, which must first be investigated, the BOP said, noting specific details could not be released due to security reasons.
“[I]n general, there are a variety of reasons, determined by numerous factors, why an inmate would temporarily be housed at a local jail,” a BOP spokesperson said. “Some reasons include allowing time for the situation to be investigated, for hearings to be held, or time to determine the most appropriate facility to be designated to. In some situations, it is up to the United States Marshals Service to determine the schedule for movement, and this determination is outside the authority of the BOP.”
The US Marshals referred questions back to the BOP.
“I just hate the situation so much. It’s so infuriating,” said Kevin Ring, the president of Families Against Mandatory Minimums, a non-profit that advocates for criminal justice reform and clemency for people like Fulton.
“I was frustrated and, frankly, a little bit angry,” said Ring. “Because, here’s somebody who’s doing everything right.”
It’s unclear how many others may be in the same situation. The BOP doesn’t readily keep track of how many inmates are in jail awaiting transfer or what the average wait time is, KXAN found.
“Our office does not maintain the type of information you are requesting,” a BOP spokesperson said.
In Fulton’s case, Ring argued, prison officials should have explained to his sister the chain-of-events that would unfold when she called to have her brother removed. He says she should have, at least, been allowed to change her mind when she learned the consequences.
“It was an avoidable disaster,” said Ring. “And, once again, the government has just failed to exercise common sense to make things work out.”
Ring and his organization are in contact with the White House, pushing for clemency. He noted there are no updates at this time but cautioned President Biden is only considering granting it for inmates with “less than four years left” on their sentence — so Fulton wouldn’t even be eligible.
There are more than 5600 prisoners currently on home confinement nationwide. Ring wants all inmates released under the CARES Act to be granted clemency, regardless of how much time is left on their sentences.
At a Congressional hearing last year, it was noted that only a tiny fraction of released inmates have reoffended.
In December, the BOP put out a memo saying it has “discretion” to keep inmates on home confinement and would develop a plan to evaluate “which offenders should be returned to secure custody” noting sentence length will be a “significant factor.”
“If somebody who’s out succeeding at home confinement, then does nothing wrong, but is still remanded and send back to prison,” Ring said. “What am I missing here?”
Ring says prison officials need to make a decision about what will happen once the pandemic ends. Fulton’s case, he says, shows why clemency is needed.
“Keeping these people under a cloud” of uncertainty, said Ring, “is not going to work long-term.”