WILLIAM W. BERRY III*
Maryland Law Review
17 June 2009I. INTRODUCTION
“Justice is the tolerable accommodation of the conflicting interests of society, and I don’t believe there is any royal road to attain such accommodation concretely.”—Judge Learned Hand1
Conflicting interests lie at the heart of the sentencing process. Not limited to the obvious competing interests of the state and the offender, the state’s broader punishment interests can often conflict.
The state’s interest in giving an offender his just deserts, for instance, competes with its interests in deterring others from committing the same crime, incapacitating the offender to protect society, and rehabilitating the offender.2 The battle for supremacy between such interests often occurs when a judge considers whether certain evidence is grounds for mitigating a sentence.3
Although parole was abolished with the passage of the Sentencing Reform Act of 1984,4 the potential for mitigating a federal sentence does not end with the sentencing decision of the federal trial judge. Rule 35(b) of the Federal Rules of Criminal Procedure authorizes the court, upon motion by the government, to reduce the sentence to reflect substantial assistance provided to the government by the defendant after the sentence became final.5 In addition, where the United States Sentencing Commission has subsequently reduced the guideline range used to sentence the defendant, the court may reduce the sentence upon a motion by the defendant or the Director of the Bureau of Prisons.6
Federal law, unbeknownst to many, includes another stipulation that authorizes the immediate release of federal prisoners. This safety valve provision demands that the Director move on behalf of the prisoner to secure the prisoner’s compassionate release.7 Not a veiled version of parole, this compassionate release provision is only to be used in circumstances deemed “extraordinary and compelling.”8 The Bureau of Prisons has read this language very narrowly for many years, considering only terminally ill inmates as candidates for compassionate release.9 In November 2007, however, the Sentencing Commission modified its Commentary to the Sentencing Guidelines, defining for the first time criteria for determining circumstances that should be deemed “extraordinary and compelling.” Specifically, the Commission’s new Commentary provides that extraordinary and compelling circumstances can include: (1) terminal illness, (2) debilitating physical conditions that prevent inmate self-care, and (3) death or incapacitation of the only family member able to care for a minor child.10
In addition, the Commentary provides that compassionate release may be granted where, “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the [three] reasons described [previously].”11
As explained below, the Bureau of Prisons has ignored, in many ways, the broader statutory language as well as its own regulations in its decision to limit the application of “compassionate release” to prisoners who are terminally ill. By limiting the use of the safety valve to cases of “medical parole,” the Bureau eschews the more difficult categories of prisoners who, for one of the reasons discussed below, may be considered for release given the facts of their particular situation. The Bureau of Prisons, in limiting its need to review compassionate release petitions to medical cases, thus abandons the flexibility to consider truly compelling cases, perhaps in part for a lack of method by which to separate the meritorious cases from the many that do not rise to the level of extraordinary and compelling.
This Article will consider the theoretical justifications for compassionate release in an attempt to develop a framework to evaluate what circumstances rise to the level of “extraordinary and compelling.”
First, the Article will argue that the state’s purposes for punishment, whether retributive or utilitarian, do not by themselves justify the compassionate release of inmates. As a result, this Article will propose that the basis for compassionate release should lie in the broader interests of the state. Thus, the Article will argue that the non-penal interests of the state (in light of the “extraordinary and compelling” factual circumstance) must clearly outweigh the state’s penological interest in the inmate serving the entire sentence before compassionate release may be justified.
Part II of this Article will explain the significance of the compassionate release provision in light of the large number of inmates in federal prison, and will provide a vignette of one prisoner’s alleged “extraordinary and compelling” circumstance that was rejected by the Bureau of Prisons Director.
Part III will outline the statutory and administrative landscape surrounding the compassionate release provision and describe the Sentencing Commission’s adoption of the guideline commentary.
Part IV of the Article will argue that the traditional purposes of punishment—just deserts, deterrence, incapacitation, and rehabilitation—cannot alone serve as the basis for awarding compassionate release to prisoners. Part V will argue that the basis for compassionate release should lie in the broader, non-penal interests of the state, and that circumstances should be considered extraordinary and compelling only when such interests greatly outweigh the state’s penological interests as applied to the prisoner at issue…
By Nina Quinn
Dostoevsky reminds us that society can be measured by how it treats its prisoners. And part of that measure must surely be the degree of compassion we show toward the dying. Yet compassionate release, or medical parole, is an under-used and too rarely granted option for terminally ill inmates in our U.S. prisons.
While some form of medical parole legislation is in place in federal and state jurisdictions, it is often overly restrictive, narrowly interpreted, and muddied by political interests. Unfortunately, a lack of political will affects bureaucratic will and ultimately the number of dying released from prison.
Barry Holman of the National Center for Institutions and Alternatives sardonically states, “There is not much of a constituency for criminals in the United States.” With overtones of Dostoevsky, he adds, “There is a lack of political and bureaucratic will to see dying in prison as a negative marker for what a prison system should be and society as a whole,”
Jack Beck; who has done a careful study of medical parole in New York State reports that not only are few people getting out, there is a downward trend. Both applications and releases are dropping. In 2000, out of 170 New York state prison deaths – most from medical reasons – 81 applied for compassionate release and only 12 were granted.
In New York, the current administration is against parole generally and this spills over to medical parole. This negative influence in not confined to New York. California and other states are facing the same antagonism and similar low release numbers.
Apart from negative political influence, there are other related obstacles. The eligibility criteria can be overly restrictive eliminating, people who are clearly terminally ill. The process can be convoluted and delayed resulting in many inmates dying in prison before their review is completed. In New York, the 2000 statistics show more than twice as many inmates died during the review process than were granted release.
When these three barriers of politics, criteria and process come together they virtually guarantee a fourth: lack of incentive to initiate applications.
While there can be various factors contributing to this, Beck points to a common theme of frustration and futility. The paper burden on the medical providers can be both excessive and judged a waste of medical time when so few are granted parole. Similarly, many prison staff with compassion for the dying, do not want to raise the inmates hopes and put them through the stress of a long waiting period only to have them die in the process or be refused.
Also, the establishing of Regional Medical Units (RMUs) and hospice programs make for a simpler alternative – transfer the inmate. The RMUs run on a fixed DOC’s budget and there is incentive to keep the beds full. Plus it is quicker, less complicated, and does not require the additional work involved in a discharge plan.
Another obstacle Beck articulates is the failure to educate the staff and inmates about the program and the process. This is particularly important in states like New York where correctional staff can initiate but the prime responsibility is placed on the inmate. Beck notes that there are prisons and infirmaries within the state that do not, for whatever reasons; file any applications for their terminally ill inmates.
Other than holding our politicians to a higher standard, what else is required for effective compassionate release policy?
A first requirement is clear legislation that is free from murky political bias, compromise, and overly restrictive criteria. A clearly defined medical prognosis is required. One that includes all terminally ill inmates. It should be clear and factual enough that inmates and their doctors know if they meet the criteria. And it should be fair.
In New York, where an incapacitation standard is used, some terminally ill are excluded because they can walk-they may die tomorrow but they are excluded because of the legislative restriction on self-ambulation.
Rather than an incapacitation model where the prime emphasis is on risk, Beck makes the case for a terminal illness diagnosis with a one-year life expectancy. Studies show that when a six months diagnosis is used, the median length of stay in hospice is roughly 30 days. One year would increase the possibility of the review process being completed before the applicant dies. Also, it would allow time for the patient to adjust and relate to his family or new surroundings.
Another requirement is that there be a clear separation between the medical prognosis and the assessment of risk upon, release. Medical staff should not be asked to assess risk but solely address the medical status and prognosis of the inmate. Risk assessment is the pervue of the criminal justice system.
It is at this stage that the process generally gets cumbersome and protracted. So many arms and voices within the criminal justice system are included that the inmate may be dead before a decision is reached. The political temptation to spread the risk and decision-making as broadly as possible needs to be reined in and the process streamlined. Maryland has a process that appears to run smoothly. What makes it particularly efficient is not only that they have kept steps to the necessary minimum, they have also mandated short timelines at each stage of the process. Any inmate applying for compassionate release knows that he or she will receive a decision no later than 30 days from the start of the process. In urgent cases, decisions have been made as quickly as one day.
Maryland also meets another requirement by mandating discharge planning as soon as the inmate is given a terminal diagnosis. This ensures that when the decision is made, everything is in place for the inmate’s release.
Communication is also important. The system could benefit from staff being well educated on all aspects of the process and this information should be made available to inmates and their families, including language translation when necessary.
Finally, a key and critical requirement, is that when a doctor makes a terminal diagnosis a mandatory application for release is submitted and the process is started including discharge planning. This standardized application should be as simple and straightforward as possible.
Photos and excerpts from the SF Bay View article yesterday (summarizing the situation well). SF Bay View is the best paper in the country for giving prisoners and their families a voice.
SF Bay View February 9, 2010
by Marpessa Kupendua
Jamie and Gladys Scott are sisters who have been wrongfully convicted of armed robbery. They each incredibly received draconian double-life sentences – life for each of the alleged two victims – although no one was murdered or injured during this robbery of approximately $11! Witnesses and the two alleged victims testified that the sisters had absolutely nothing to do with this robbery and also testified that the sheriff coerced and threatened them to lie on the Scott Sisters. Jamie and Gladys Scott have been in prison since October of 1994, victims of Mississippi injustice with the best years of their lives snatched away.
Jamie Scott suffered kidney failure in early January 2010 as the culmination of many medical ailments that have manifested during her incarceration and which were never properly diagnosed nor correctly treated due to the state’s refusal to provide her with proper medical care. Even after Jamie’s kidneys shut down, the prison medical doctor stubbornly refused to send Jamie to the hospital and toxins continued to accumulate in her body.
One morning last month she was taken to the hospital where a temporary catheter was inserted into her neck and she was returned directly to the prison a few hours later and soon thereafter removed from the prison medical building when she was very weak and barely able to take care of her activities of daily living. Jamie was recently rescued by an inmate who found her lying in her cell unresponsive and in shock and yelled out for her to be rushed back to the hospital.
The doctor there informed Jamie that her dialysis had not been administered correctly and that her temporary catheter was malfunctioning, yet she was again returned right back to the prison!
The prison’s cut-rate medical practices are life-threatening for Jamie! The longer she remains in that prison the more her health will continue to deteriorate. This is a proven fact which is documented by her steady decline during her 15 years of unjust incarceration.
Jamie needs compassionate release RIGHT NOW before she suffers any further. Large numbers of people must raise this demand before the authorities will take any action on her behalf!
Please continue to call and write to support the Scott Sisters and particularly Jamie Scott during this period of medical emergency. Specifically this week we are asking that a special focus be placed on COMPASSIONATE RELEASE for Jamie Scott through the governor’s office.
As was reported on Feb. 5, the level of medical care that she is receiving in that prison is ATROCIOUS. She missed a dialysis treatment, has a possible infection from a malfunctioning temporary catheter – Jamie says it is full of blood and pus – and just prior to that went into shock due to malpractice on the part of the prison medical staff!
Jamie was told that she would be going back to the hospital for surgery to have a permanent shunt installed on Monday or Tuesday, but we don’t know that this will occur or if it will even be appropriately used given the circumstances surrounding the failures of the prison to properly care for her to date. The family and legal supporters are pressing to get Jamie released based on her frighteningly declining health ever since her initial imprisonment!
Jamie recently wrote a letter to her supporters, excerpts of which follow:
“First let me thank you for the prayers, strength and consideration you have displayed for me and my sister. This ordeal with my kidneys has truly broke me down. I am tired, but I know I cannot give up, because of my family and many supporters.
“It was first determined that I had protein in my urine in 1997. Throughout the years it went uncured and untreated and I wasn’t hurting so I thought nothing of it. They would take tests and never receive results. I had a kidney biopsy done around 1997, but once again never received any results. My uterus fell and was removed in 2005. Once again, I never received results of tests on my kidneys.
“Now what we must not do is lose our temper and make things worse. Please, you cannot call up here and use abusive language. That will not solve anything. About my dialysis treatments, I go Monday, Wednesday and Friday. The setup is inside a trailer.
“It is hard and I want my life. The only thing as a whole we can do is try to get the governor to do something right and release me and Gladys.
“I want to thank each one of you for everything you have done. – Jamie.”
Mrs. Evelyn Rasco, Jamie and Gladys’ mother, writes:
“My girls are dying in that prison cell daily and they have five kids that have been asked all of their lives, ‘Why does your grandmother have you?’ When they tell people, they can’t believe that their mothers received double life sentences each and never touched anyone or even held a weapon. My whole world revolves around these kids and their children, and we are crying out for help! It is this justice system that should be made to free Jamie and Gladys and to stop trying to destroy our entire family.”
Call on Gov. Barber to grant compassionate release to Jamie
Executive paralegal with Advocate Associates, Sis. Shakeerah Abdul al-Sabuur, has filed for compassionate release for Jamie and we need to request that Gov. Haley Barbour act on that and immediately release JAMIE SCOTT, No. 19197, from Central Mississippi Corrections Facility (CMCF). He is under a budget crisis, has stated that releasing inmates from the prisons are a possibility and has released inmates in the past.
Jamie Scott must get the medical care that she needs to survive OUTSIDE of those prison walls!
The paperwork that was submitted is at http://www.scribd.com/doc/26252282/COMPASSIONATE-RELEASE-FOR-JAMIE-SCOTT.
Contacting the others on the list below is still very important, particularly the mainstream media, but we absolutely must make certain that the governor’s office hears and reads messages from a whole lot of people to bolster the efforts of our legal advisers.
PLEASE PASS THE WORD AND HELP TO LIGHT UP THE GOVERNOR’S OFFICE THIS WEEK! Be direct but please be courteous; don’t lose your temper no matter what you hear. It will only take a few minutes. Please participate!
To contact Gov. Haley Barbour, write P.O. Box 139, Jackson, MS 39205, call 1 (877) 405-0733 or (601) 359-3150, or fax (601) 359-3741. If you reach voice mail, leave a message, and also send faxes and letters.
ACTION ALERTS as of Feb. 10 (also posted below)
The Action Committee for Women in Prison just posted a BRAND NEW petition specific to getting compassionate release for Jamie Scott and we need to get as many people as possible to sign on quickly, so please go to http://tinyurl.com/yfrj5g6 and SEND IT TO OTHERS.
Contact these government officials – in addition to the governor
Christopher Epps, Commissioner of Prisons for the State of Mississippi, 723 North President St., Jackson, MS 39202, (601) 359-5600, CEPPS@mdoc.state.ms.us
Emmitt Sparkman, Deputy Commissioner of Prisons, (601) 359-5610, email@example.com
Margaret Bingham, Superintendent of Central Mississippi Corrections Facility, P.O. Box 88550 Pearl, MS 39208, (601) 932-2880, firstname.lastname@example.org, fax (601) 664-0782
Dr. Gloria Perry, Medical Department, (601) 359-5155, email@example.com
Attorney General Eric Holder, U.S. Department of Justice, 950 Pennsylvania Ave. NW, Washington, DC 20530-0001
Mayor Brad Rogers of Pearl, MS, where Jamie is incarcerated, (601) 932-3575, fax (601) 932-3568
Congressman Gregg Harper, 2507-A Old Brandon Road, Pearl, MS 39208, (601) 932-2410, fax (601) 932-4647
U.S. Sen. Thad Cochran, United States Senate, Washington, DC 20510-2402, Jackson (601) 965-4459, contact form http://cochran.senate.gov/contact.htm
Contact the media
Feel free to contact any and all major media you have information for. Don’t be limited by these listings at all!
WAPT TV (601) 922-1607, news tips (601) 922-1652 or http://www.wapt.com/contact/index.html
WJTV (601) 372-6311, fax (601) 372-8798, http://www2.wjtv.com/jtv/online/site_information/contacts/
FOX 40 (601) 922-1234, http://www.my601.com/content/contactus/default.aspx
NBC Today Show Today@NBCUNI.com
NBC News, 30 Rockefeller Plaza, New York, NY 10112, (212) 664-4444, fax (212) 664-4426
CBS feedback form http://www.cbs.com/info/user_services/fb_global_form.php; CBS News, 524 W. 57 St., New York, NY 10019, (212) 975-4321, fax (212) 975-1893
ABC News contact form http://abcnews.go.com/Site/page?id=3271346cat=Good%20Morning%20America; ABC News, 77 W. 66 St., New York, NY 10023, (212) 456-7777
CNN News tip form http://www.cnn.com/feedback/tips/newstips.html; CNN, One CNN Center, Box 105366, Atlanta, GA 30303-5366, (404) 827-1500, fax (404) 827-1784
Joe Madison Joe.Madison@xmradio.com
Geraldo Rivera firstname.lastname@example.org
Oprah contact form https://www.oprah.com/plugform.jsp?plugId=220
USA Today, 7950 Jones Branch Dr., McLean, VA 22108, (703) 854-3400, fax (703) 854-2078
Associated Press, 450 West 33rd St., New York, NY 10001, (212) 621-1500, fax (212) 621-7523, email@example.com
Congressman Bennie Thompson, 2432 Rayburn House Office Building, Washington, DC 20515, (202) 225-5876, fax (202) 225-5898; Jackson, Mississippi, Office, 3607 Medgar Evers Blvd, Jackson, MS 39213, (601) 946-9003, fax (601) 982-5337
Congressman Alcee L. Hastings, 2353 Rayburn House Office Building, Washington, DC 20515, (202) 225-1313, fax (202) 225-1171
Congressman Jeff Miller, 2439 Rayburn House Office Building, Washington, DC 20515, (202) 225-4136, fax (202) 225-3414, toll free number to district office in Pensacola, Florida, (866) 367-1614
Marpessa Kupendua is a political and human rights activist and writer. She can be reached at firstname.lastname@example.org.
Check out the link to the petition below. Sign it, and please pass it on to others.
Subject: 2/10/10 Update On Jamie Scott ~ Please Contact The Governor ~ By Sis Marpessa
PLEASE keep on blasting Governor Haley Barbour’s office! Jamie Scott was taken by ambulance to the hospital yesterday and returned to the prison thereafter and we’ve been told that she is very severely depressed. We have no official report on what was done to her there but believe that it could at the very least have included her having a dialysis treatment performed. We have some important organizing updates to share, so please forward and ACT!
The Action Committee for Women in Prison just posted a BRAND NEW petition specific to getting compassionate release for Jamie Scott and we need to get as many people to sign on as quickly as possible, so please go to http://www.facebook.com/l/88ff7;tinyurl.com/yfrj5g6 and SEND IT TO OTHERS.
Peggy Plews of Mississippi Prison Watch did an outstanding appeal to the Mississippi Kidney Foundation at http://www.facebook.com/l/88ff7;mississippiprisonwatch.blogspot.com/2010/02/mississippi-kidney-foundation-appeal.html
“It may well be that Jamie’s crisis is the catalyst that gets so much needed focus on the critically and terminally ill in prison; without her voice, countless others may suffer in invisibility. And her example of survival and resistance is an inspiration to other women living and dying there, too.” Check it out, she was very thorough!
The Women Behind the Wall blogtalk radio program hosted by Mary Ellen and Gloria on 2/9 provided a lot of education and insight from those who could personally testify to being sick inside of those hellholes and the lack of caring offered by the corporations which dole out what passes for medical care, some of which has to come directly from the inmates’ own pockets! This program featured Mrs. Rasco and Shakeerah Abdul al-Sabuur, paralegal, and is archived at http://www.facebook.com/l/88ff7;www.blogtalkradio.com/4justicenow/2010/02/09/women-behind-the-wall?&utm_source=remail&utm_medium=listener
The fantastic San Francisco Bay View continues to be our leading print resource and has posted a wonderful new piece today at the site: http://www.facebook.com/l/88ff7;www.sfbayview.com/2010/compassionate-release-for-jamie-scott/
We’ve added in a new link to the Govs’ assistant and ask that folks please CALL into the governor’s office for maximum effect, but additionally follow-up with e-mails, letters, faxes and anything possible. Please do something rather than nothing at all!
Thank you so much, everyone!
BE DIRECT BUT PLEASE BE COURTEOUS — NO YELLING OR CURSING!
IT WILL ONLY TAKE A FEW MINUTES, PLEASE PARTICIPATE!
Governor Haley Barbour
P.O. Box 139
Jackson, Mississippi 39205
1-877-405-0733 or 601-359-3150
(If you reach VM leave msgs, faxes, and please send letters)
Personal Assistant to Gov. Barbour
P. O Box 3150
Jackson, MS 39205
Christopher Epps, Commissioner of Prisons for the State of Mississippi
723 North President Street
Jackson, MS 39202