Two weeks ago, when Governor Andrew Cuomo began to shut down New York City after the spread of coronavirus became unmanageable, Lance Lazzaro sprung into action. For the past two years, Lazzaro has served as counsel to Daniel Hernandez, the controversial rapper known as Tekashi 6ix9ine who, until this week, was in federal custody on racketeering charges, serving out the final months of a two-year sentence.
“If you’re a prisoner, whether you’re in a Bureau of Prisons facility or a private facility, you can’t quarantine people in jail,” Lazzaro told Rolling Stone of his decision to file a motion for the release of Hernandez. “It’s an impossibility.” Hernandez has asthma, Lazzaro argued, which made him susceptible to the rapidly spreading disease. “If the government is now trying to get people out of jail because of this virus, why not take a chance on Daniel Hernandez?” he says.
The plan immediately ran into roadblocks. Lazzaro first submitted his motion to Judge Paul Engelmayer, the presiding judge in the racketeering case. Engelmayer, in turn, directed Lazzaro to file his request with the Bureau of Prisons, which typically decides whether prisoners are eligible for compassionate release — a way to release prisoners for underlying health conditions.
After cooperating with the United States Attorney in his racketeering charge by testifying against his former gang associates, Hernandez had been transferred to a private facility in Queens overseen by U.S. Marshals. This meant that the Bureau of Prisons did not consider Hernandez under its jurisdiction. According to an email written by a Bureau of Prisons representative, initially obtained by Inner City Press, the bureau does “not have any authority or oversight of his case as he is not in a BOP facility. If the Court orders a compassionate release for him, that information will be provided to the US Marshals Service and the GEO facility for processing.”
“In January, I tried to get him out to a halfway house of home confinement, but was told at that point by the legal counsel of the Bureau of Prisons that he would not be eligible for any BoP remedies because he was never in a BoP facility,” says Lazzaro. “The reason I originally went to the judge was because the Bureau of Prisons was never an avenue I could rely upon.”
After the Bureau of Prisons declined to release Hernandez due to his placement in a non-bureau facility, Lazzaro appealed the decision to Engelmayer once again. On Wednesday morning, Engelmayer released a letter supporting Hernandez’s compassionate release, but included time for the U.S. Attorney’s office to respond before making an official ruling. “I think Judge Engelmayer wanted to know the U.S. Attorneys’ position,” says Lazarro. “If you look at his decision yesterday in the morning, his order, he basically says ‘I have the authority now, and it would be my position to release him,” and then he asked for the attorney’s comments.”
By Wednesday afternoon, the U.S. Attorney’s office made itself clear. In a letter to Judge Engelmayer obtained by Rolling Stone, United States Attorney Geoffrey Berman wrote that “the Government does not oppose the defendant’s motion for compassionate release,” paving the way for Engelmayer to order Hernandez’s release.
Though the decision to release Hernandez would not be made public until Thursday afternoon, the rapper’s release was in motion after a ruling by Engelmayer late Wednesday night. According to both Lazzaro and a second letter from U.S. Attorney Berman obtained by Rolling Stone, the delay was for Hernandez’s safety. “The Government respectfully submits that delayed docketing of the Order for a short period of time will ensure the safety of law enforcement agents and Mr. Hernandez upon his release from custody,” wrote Berman. Similarly, where Hernandez will serve out the remaining four months of his home confinement is currently confidential. “It’s for safety reasons,” say Lazzaro. “Nobody could ever know that.”
In his final ruling, which was made public and obtained by Rolling Stone on Thursday afternoon, Judge Engelmayer was unequivocal that the reason for Hernandez’ release was due to the extraordinary circumstances that accompany the coronavirus outbreak, and not the particulars of this case. “In light of the heightened medical risk presented to Mr. Hernandez by the COVID-19 pandemic, there are extraordinary and compelling reasons to reduce Mr. Hernandez’s sentence in the manner requested,” Engelmayer wrote in a ruling obtained by Rolling Stone. “The COVID-19 pandemic is extraordinary and unprecedented in modern times in this nation. It presents a clear and present danger to free society for reasons that need no elaboration.”
Hernandez now is restricted to one undisclosed location for the next four months — he was originally set to be released from prison at the end of July, and will then serve five years of probation. According to an order filed by Judge Engelmayer, Hernandez will be fitted with a GPS monitoring device for his time in home confinement. For Lazzaro, this looks like success. “At this stage, my job is done. He’s home,” he says. “My goal from day one was to get him home, and today was a good day.”
While Hernandez will be restricted to his home for the next four months — “except to seek any necessary medical treatment or to visit his attorney,” according to Judge Engelmayer’s order — his home confinement does not come with many other restrictions. “He’s allowed to speak to people,” says Lazzaro. “He’s allowed to make albums.” Last year, while still in federal custody, Hernandez signed a new record deal with 10K Projects, which was reportedly worth $10 million for two albums, one recorded in English and the other in Spanish. If the location Hernandez is serving the remainder of his sentence has the ability to record — which is likely — he would potentially be able to make good on his commitments before officially walking free.
The order also doesn’t place any stipulations on Hernandez’ use of social media, which could mean Tekashi 6ix9ine makes a return to Instagram, his platform of choice, sooner rather than later. “He’s allowed to use the internet. I haven’t seen any order come in restricting him from social media,” says Lazzaro. “I’m sure he’ll use his discretion in what he posts and does not post.”
“I’m sure that Daniel will be very…” Lazzaro pauses. “Look, I think Daniel learned his lesson.”
