Saturday, December 1, 2012

Dying Federal Prisoners Rarely Granted ‘Compassionate Release,’ Study Finds

Because a short-term criminal sentence is not necessarily a sentence to suffer with a terminal illness in prison, both the federal government and the states have a process by which those prisoners who have been diagnosed with a fatal illness – or who have some other change of situation such as a dying family member — can apply for release. But the chance of federal prisoners being granted release is exceedingly low, according to a new study by Human Rights Watch and Families Against Mandatory Minimums. While even tough states like Texas let out about 100 people per year on medical parole, the federal system releases on average around two dozen people, out of a population of more than 218,000 inmates. One such inmate highlighted by the report died while in prison for gun possession, despite a plea for release from the judge who sentenced him:

Michael Mahoney was sentenced in 1994 to a mandatory minimum term of 15 years as an “armed career criminal.” The “career criminal” designation derived from three drug sales totaling less than $300 to an undercover agent over a three-week period in the late 1970.Felons, like Mahoney, may not legally possess firearms. Erroneously believing that enough time had lapsed since his prior convictions to allow him to carry a gun, Mahoney had purchased one to protect himself when making night deposits from his small business. When the gun was stolen, he duly reported it to authorities, his error was discovered, and he was prosecuted. Years later, in 2004, Mahoney was dying in prison from lymphoma and asked for compassionate release. The warden at the Lexington Federal Medical Center thought the BOP should file a motion on his behalf, and the regional director agreed. 
In late July, BOP Director Harley Lappin denied Mahoney’s request, even though the regional director had approved the request and it was unopposed by the US attorney. Lappin’s decision was based on “the totality of the circumstances” and Mahoney’s “multiple felony convictions.” 
On July 26, 2004, Judge James D. Todd, who had sentenced Mahoney, hearing of the director’s denial, wrote to Lappin, stating that in 20 years on the bench he had never before written to a corrections official on behalf of a prisoner he had sentenced. Describing the circumstances of Mahoney’s conviction, he said that “Mr. Mahoney’s case has troubled me since I sentenced him in 1994… [as] one of those cases in which a well-intentioned and sound law resulted in an injustice.” He said he was aware that Mahoney was bedridden, suffering great pain, and considered near death. He suggested “that … a motion [for compassionate release] is the only way to mitigate in a very small way the harshness which [the Armed Career Criminal Act] has caused in this unusual and unfortunate case.” Lappin did not reply. Mahoney died a few days later.

What’s more, the report documents the extraordinary financial and societal savings that would result from more compassionate releases:

Increasing the number of dying or debilitated prisoners who are granted compassionate release … but would free the BOP from the unnecessary security costs of confining prisoners who pose scant risk of harm to anyone and from their medical costs. The per capita cost of caring for a prisoner in one of the BOP’s medical centers was $40,760 in FY 2010, compared to an overall per capita cost of $25,627. Releasing prisoners who are not suffering from grave medical conditions but who face other compelling circumstances—such as those whose children are destined for the foster care system or who are desperately needed at home to care for dying family members—would advance other important societal goals, such as preservation of the family. 
Human Rights Watch senior adviser Jamie Fellner told NPR that she believes it’s the federal prison culture that fosters the alarmingly low rate of release. “They’re in the business of keeping people in prison,” Fellner said.

A similar phenomenon is occurring in the federal process for granting pardons (which revoke convictions) and commutations (which shorten sentences), handled by another arm of the DOJ, the Office of the Pardon Attorney. Some people, including former White House Counsel Greg Craig, have suggested the abysmally low rate of both forms of relief is reason to remove this function from the Department of Justice, and similar measures might prove effective in the “compassionate release” context. The Human Rights Watch report instead suggests reform within both the DOJ and the BOP, which it says is misconstruing its role as a vehicle for recommending motions to the courts.

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