Let's End the 'Death Rattle' Rule

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Julie Stewart

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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