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Let’s End the ‘Death Rattle’ Rule

May 24, 2012 11:17:02 am
Comments (7)

By Julie Stewart

It is easy for most Americans to identify ways in which the government wastes money, but it is not often you come across a federal program that is both wasteful and cruel. The Federal Bureau of Prison’s (BOP) “compassionate release” program fits the bill.

Some background will help. When Congress passed the landmark Sentencing Reform Act of 1984, in the interest of “truth in sentencing” it abolished parole at the federal level and eliminated all but a few opportunities for a judge to revisit and shorten a sentence once it had become final. 

One little-known opportunity permits courts to order the immediate release of prisoners in “extraordinary and compelling” circumstances.  Although Congress did not restrict this opportunity to situations where an inmate was in grave medical condition, the relief— which became known as “compassionate release”—was limited to such cases. 

But, and this is important, a judge cannot act unless the BOP asks the court for the sentence reduction. 

Before 1994, the BOP would only file motions in court to release terminally ill patients with less than six months to live. It did not matter if the inmate was bedridden or suffered from advanced dementia, or how many taxpayer-funded medical services he required.

In 1994, the BOP slightly broadened its qualifications to include those with a terminal illness and less than a year to live, but it made no difference.

BOP’s macabre standard became known as “the death rattle rule,” as in, no death rattle, no release. Despite the wider standard, during the 1990s, an average of 21 inmates a year received compassionate release, a figure that represents 0.01 percent of the federal prison population.

Sentencing reform groups, including Families Against Mandatory Minimums (FAMM), were dismayed by BOP’s cruel administration of the compassionate release program. The Bureau’s nonsensical stinginess resulted in families being kept from their incarcerated loved ones when they died, and in taxpayers footing the bill for extraordinary, end-of-life health care expenses that could have been shouldered by inmates or their families. 

In 2007, the U.S. Sentencing Commission adopted sentencing guidelines to broaden eligibility for the compassionate release program.

The Commission’s amendment was an overdue but straightforward interpretation of the Sentencing Reform Act. It interpreted to the Act’s “extraordinary and compelling circumstances” to include, but not be limited to, instances where: (1) the inmate is suffering from a terminal illness; (2) he is suffering from a permanent physical or mental health condition that prevents him from caring for himself and from which he is not expected to improve; and (3) the death or incapacitation of the inmate’s only family member capable of caring for the inmate’s minor children.

The BOP responded to this not-too-conservative, not-too-liberal interpretation by promptly ignoring it.

Instead, it has continued to follow its grisly death rattle rule.

Nothing has changed. The rate of compassionate release motions filed by the BOP from 2000 to 2001 is the same as it was during the 1990s: an average of just 21 per year. In roughly 24 percent of those motions, the inmate died before the district court even had a chance to rule on the motion.

Even the “lucky” ones are often forced to spend their final days fighting the BOP bureaucracy. Under the BOP’s rules, nearly every layer of the bureaucracy gets a chance to say “no” to an inmate seeking compassionate release.

The process begins with the warden of the inmate’s prison and the winds its way through the BOP’s regional director, general counsel, medical or assistant director, and then to the BOP director.

Earlier this year, Steve Sady, the tireless deputy federal public defender for Oregon, challenged the BOP to defend in court its refusal to follow Congress’s and the Sentencing Commission’s direction on compassionate release.

Sady did so while pursuing the release of a man who in 2002 pleaded guilty to one count of possession with intent to distribute methamphetamine. Although the man carried less than one-half ounce of the drug, he received a 13-year prison sentence because of his prior record.

Last August, Mr. Sady’s client was diagnosed with Acute Myelogenous Leukemia, a terminal illness. He was transferred to a BOP medical center for treatment, but his doctors concluded he had only a few weeks left to live.

Despite the diagnosis, the BOP refused to file a compassionate release motion. So, Mr. Sady filed his own motion, charging the BOP with usurping legislative and executive authority and setting forth the desperate circumstances of his client’s situation. He argued that the BOP had exceeded its authority when it refused to let the judge decide what is and is not a worthy case for compassion. 

Called out publicly, the BOP caved.

The need for compassionate release is only going to grow. First, the number of older prisoners has increased by 750 percent nationwide over the last two decades. Second, the BOP is already suffering from severe overcrowding; its facilities are operating at 138 percent of capacity.

Lastly, Congress is facing a massive budget problem. Though it is asking agencies to look everywhere for cuts, the BOP is seeking an increase of more than $80 million to activate two new prisons.

Even if administered correctly, the compassionate release program cannot solve BOP’s overcrowding problem or Congress’s budget challenges, but it can help.

Taxpayers need not subsidize expensive medical services for inmates who pose no threat to public safety. Ultimately, however, we need to expand the compassionate release program to save more than money.

We need to do it save our nation’s soul.

Julie Stewart is president and founder of FAMM (Families Against Mandatory Minimums). FAMM works for fair and proportionate sentencing laws that allow judicial discretion while maintaining public safety. She welcomes comments from readers.  

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Posted by Debi Campbell
Thursday, November 29, 2012 07:35

I never saw the BOP grant a request for compassionate release the entire time I was incarcerated between four institutions. I only saw one person win a compassionate release and that was because a senator stepped in and pushed for her release. The BOP never wants ANYONE to be granted an early release, not even if they are dying.

Posted by Ahmed
Thursday, October 18, 2012 02:34

Anonytard 3:02 vomited:“Hey moron, nodboy goes to prison for smoking a joint.”Anonytard 3:07 barfed:“You’re a moron. Most of the people in prison relating to drugs are trafficking heroin and cocaine and belong to violent drug gangs. This isn’t grandpa smoking a joint.”Anonytard 3:13 spewed:“Don’t try to spread the BS that half the prison population is in there for smoking a joint.”————————————————Wow. Where to begin?First, get a name.Second, don’t make the same point in three different posts to try and make it look like multiple people share your views.Third, you certainly can go to jail for smoking a joint, especially if you’ve been picked up for it before. However, you are not likely to do a lot of time for it.Fourth, even if your assertion about people not going to jail for mere possession were true, which it is not, pot smokers are still sentenced to pay fines, do community service, comply with typical probation restrictions, and go to useless addict meetings. In addition, these people will have permanent criminal records. This not only ruins people’s lives, but it costs the taxpayer money for the police officers’ time, the courts’ time, the prosecutors’ time (and usually a public defender’s time), as well as the probation officers’ time — not to mention the loss in productivity that the defendants have when they are dealing with this petty BS instead of going to work.The cost of prison housing is not the only economic cost of bad drug policy.

Posted by Rwolf
Friday, June 01, 2012 12:00

It has been said you can foresee a country’s future by how well it treats its prisoners.

Posted by Graydon Wilson
Tuesday, May 29, 2012 04:15

While the human compassion aspect and the prison-overcrowding aspects are meritorious, the budgetary aspect of this argument is not.

Prisoners generally do not have any significant assets (especially after forfeiture proceedings) and certainly no insurance. Being seriously ill, they would not be able to secure employment and thus, even if the bar on pre-existing conditions in the Health Care Reform Act survives judicial challenge, the released prisoner would not be able to afford the insurance premiums. Prisoners in dire medical circumstances are rarely 26 years of age or younger and would not be eligible to be covered by their parent’s insurance, another provision of the Health Care Reform Act. The substantial majority of prisoners’ families are in the middle class and poorer segments of the community and often unable to shoulder the extraordinary financial burden often associated with end-of-life medical problems.

In the absence of independent financial resources and in the absence of insurance, the released prisoner would be eligible for Medicaid and the medical expenses would thus continue to be a public burden.

Posted by Jim Gormley
Friday, May 25, 2012 02:41

I was a practicing lawyer (U.Va. Law School, J.D. 1987 before being sent to prison in 2000, for 8 years. I gained first-hand experience with the BOP’s “Compassionate Release” rules and protocols in 2005, while serving time at U.S. Penitentiary-1, Coleman, Florida (where 2/3 of inmates are serving life sentence). At the Warden’s suggestion, I prepared a Petition for a terminally ill (cancer) inmate who was then believed to be the longest serving inmate in the entire BOP system. He had been convicted of kidnapping resulting in death in June 1964. By the time I met him, he was a frail, chain-smoking (he died before the BOP eliminated tobacco products in 2006) old man, confined to a wheelchair. He died in September 2005, 3 weeks after we filed his Petition with the Warden. I remember clearly the morning that his cellmate found his dead body, and the prison was locked down so that the local Coroner (a state, not a Federal official) could investigate and remove the body through back hallways. The current decision-making process simply takes too long, so most inmates die in prison before the BOP bureaucrats decide whether to submit their Petitions to a Federal Judge with a recommendation. The deaths of terminally ill inmates happens with particular frequency at Federal Medical Centers (FMCs, medical prisons), which actually have Hospice Units for the terminally ill. The prisons are always locked down while the dead bodies are being removed, so that the other inmates won’t see them and get upset or violent. When inmates die in prison, the BOP must also bear the costs of cremation or the transport of the body to the inmate’s home town for burial (but the actual burial costs must be bourn by the families). These procedures and rules should be streamlined, for everyone’s benefit, including the U.S. Treasury and the BOP itself. Please call me for more stories and information on this topic, 859-806-4434.

Posted by Jennifer Seleem
Thursday, May 24, 2012 10:33

Thank you Julie on behalf of all inmates and families a lot of the issues that happen the prisons. Many families like mine are suffering just as much as the inmates. My father is currently seeking compassionate release and has a hard time getting approved I hope with your effort and our attorney who is a very intelligent women Mrs. Lynne Reid get somewhere and help many families and iates get there finally wishes and be able to die with dignity and peace with their families.

Posted by Lynne Reid
Thursday, May 24, 2012 06:31

Thank You Julie, on behalf of all inmates suffering with life threatening illnesses in our federal prisons, far from family and comfort. It is important to spotlight this issue to hold the BOP accountable for their arrogant defiance of federal law, lack of compassion for the inmate/patients and the tax payers footing the bill for their medical care.
Lynne Reid, Esq.
Chapel Hill, NC

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