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How Bureaucrats Stand in the Way of Releasing Elderly and Ill Prisoners

The Department of Justice has expanded eligibility for compassionate release. But whether that means more inmates are let out early depends on the “compassion” of prison officials.

Prisons are struggling to cope with the growing number of elderly and ill inmates incarcerated in the U.S. (Photo by Tim Gruber)

Former inmate Veronica Barnes had three years left to serve in federal prison when she found out in January 2011 that her husband John was dying of pancreatic cancer. Doctors said it was inoperable. They gave him less than a year to live.

Barnes worried who would look after her children, who were four and five years old at the time. A social worker suggested she apply for compassionate release, a program that lets federal inmates convicted of nonviolent crimes who face “extraordinary and compelling circumstances” get out of prison early.

Barnes, 32, seemed to fit most of the criteria. She was in prison on a nonviolent drug charge, and there was no one to care for her children when her husband died.

Barnes had been living with her family in Yarnell, Ariz. and working at the local market when she was arrested in 2008. She plead guilty to intent to distribute methamphetamine, and was sentenced to six years in prison. At the federal prison camp in Phoenix, Arizona, she saw her children every week, completed a parenting class, took college courses, and graduated from a drug rehab program.

The assistant U.S. attorney who tried Barnes' case said she believed it was “a sympathetic case,” and that Barnes was unlikely to reoffend. The warden at the prison camp in Phoenix supported freeing Barnes.

“Based on the ages of the children and the death of their father, the children are dealing with a doubly traumatic situation since their mother is not able to render support or care,” the warden wrote. “I am in favor of recommending Ms. Barnes for compassionate release so she may reunite with her young children during this difficult time.”

A year and three months after submitting her first application — and nearly eight months after her husband died — Barnes received a letter from the Bureau of Prisons’ central office. Her request had been denied.

The Barnes family (Photo courtesy of Veronica Barnes)“All that time I spent waiting for their response, my children were living with strangers,” Barnes said.

Officials at the federal Bureau of Prisons central office decided it was in the best interest of Barnes’ two children to stay with a local couple in Yarnell who Barnes’ pastor had found to care for the kids.

“Review of Ms. Barnes’ past history raises concern as to whether she will be able to sustain the stresses of sole parenting and employment while remaining crime-free,” wrote Kathleen Kenney, general counsel and assistant director of the Bureau of Prisons.

The government has long been criticized for rarely granting compassionate release. This August, Attorney General Eric Holder announced the Justice Department would try to change that by expanding criteria for who can apply.

Under the new guidelines, compassionate release can be granted not just to prisoners who have terminal illnesses, but also to those with debilitating conditions.  Prisoners who need to serve as caregivers for family members may now also seek reductions in sentencing. And for the first time, elderly federal inmates who aren’t necessarily dying or incapacitated can apply to be let out early.

Holder touted the compassionate release initiative as one way to cut down on the “astonishing” federal prison population, which has grown by nearly 800 percent since 1980.

But even if the changes enable more inmates to apply for compassionate release, prison officials still have almost total discretion over who is approved.

A federal prison’s warden, as well as the Bureau of Prisons’ regional director and central office must sign off on an inmate’s application before it is passed on to a judge. Any of those officials can reject applications for a number of reasons, from a perceived risk of recidivism to concern for what’s best for a prisoner’s child, as in Barnes’ case. There is no process for inmates to appeal those decisions in court.

Many advocates say they expect eligible inmates will remain behind bars despite the changes. “I don’t believe it’s going to change at all,” said lawyer Marc Seitles, whose client was denied release despite terminal cancer. “It’s still the same people making decisions.”

In September, Bureau of Prisons Director Charles Samuels said he predicted expanding eligibility would result in the “release of some non-violent offenders, although we estimate the impact will be modest.” (The agency declined to make Samuels available for comment to ProPublica.)  

As of October 29, The Bureau of Prisons had approved and passed along 50 compassionate release requests to judges this year. That’s up from 39 in 2012 and 29 in 2011.

It’s impossible to know if the overall rate of approval has increased, as the federal Bureau of Prisons hasn’t released the number of inmates who have applied.

The Bureau says it recently started to track inmate requests, after an Inspector General report earlier this year excoriated the department for failing to do so. The report also found most inmates didn't even know the program existed.

The expansion of compassionate release was motivated in part by the rising number of sick and elderly inmates incarcerated in the U.S. As of 2011, there were over 26,000 inmates over 65 in state and federal custody.

And as the elderly population in prison grows, so do their medical bills. Housing an inmate in a prison medical center costs taxpayers nearly $60,000 a year — more than twice the cost of housing an inmate in general population.

Many lawyers and prisoner advocates have said the “jailers are acting as judges” by rejecting most compassionate release cases without ever passing them onto the courts for a final decision.

“The Bureau of Prisons should be letting judges have the opportunity to decide every time extraordinary and compelling reasons come to their attention, and [they are] not doing that,” said federal public defender Steve Sady, who has written extensively on the issue and represented clients requesting early release. “We believe that, under the statute, the sentence is for the judge to decide.”

Prisons spokesman Edmond Ross said in an emailed statement that “Congress gave the [Bureau of Prisons] authority” to decide which inmates should be granted release.

“Review includes deliberation on the most important factor, ensuring that an inmate's release would not pose a danger to the safety of any other person or the community,” he said. “This must be considered before any request is submitted to a court.” (Read their full statement.)

Mary Price, general counsel for Families Against Mandatory Minimums, says prison officials are ill-equipped to make those kinds of decisions. Prison officials’ “job is to keep people locked up. Identifying people who should no longer be incarcerated is just not what they do,” she said.

This is especially true in cases like Barnes’, Price said, in which prison officials decide complicated legal questions such as whether an inmate is fit to parent. “You would never trust your child’s guardianship issues to a bureaucrat in the Bureau of Prisons,” she said. “They have no competence or expertise in this.”

Ross said the Bureau of Prisons has implemented new training programs to better prepare wardens and other prison officials to make these decisions.

Some inmates have tried to take their cases directly to court, but most judges say their hands are tied without the prison bureau’s approval.

Federal inmate and lawyer Lynne Stewart tried to seek compassionate release from a federal judge after she was diagnosed with breast cancer. Stewart is serving a 10-year sentence in a Texas federal prison for serving as a messenger for her client, Sheik Omar Abdel Rahman, who was convicted of terrorism charges in connection with the 1993 bombing of the World Trade Center.

Prison officials denied Stewart’s request in June, saying she hadn’t proven she had less than 18 months to live. So Stewart took her case to court, hoping a federal judge would overrule the prisons’ decision.

“There is no doubt that Lynne is dying,” said Stewart’s husband, Ralph Poynter. “She can’t breath, the cancer has taken over both lungs.” Stewart “sounds like she’s running” when they talk on the phone, Poynter said.

The judge wrote that he had no choice but to deny her request. “The court would give prompt and sympathetic consideration to any motion for compassionate release,” the judge wrote, “but it is for the [Bureau of Prisons] to make that motion in the first place.”

Stewart’s lawyer Jill Shellow was “disappointed” the judge refused to weigh in on Stewart’s case. “She’s not at risk of recidivism,“ Shellow said. “I remain convinced that it is inappropriate for the Bureau of Prisons to be making the decisions.”

Prisoner advocates at Human Rights Watch and other organizations have proposed allowing inmates to go before a judge to appeal rejections.

“Unless there’s an institutional change or a criteria that they have to follow, this will never change,” Seitles said.

While Barnes was not granted early release, the Bureau of Prisons did give her a one-day furlough. She had to choose between visiting her husband on his deathbed or attending his funeral.

Barnes decided to see her husband while he was still alive. “It’s very hard to wake up in the morning and know that that’s the last time you’re going to see him,” she said. “My kids were all excited that mommy’s home. I had to explain that I was just there for a couple hours.”

Barnes completed her sentence in June, and has since been a single parent to her two children. She’s returned to her job at the market, and is taking classes at a nearby community college. But remaining behind bars as her husband died has had a lasting impact.

“The relationship with my children will never be repaired,” she said. “I wasn’t there when their father was dying.”  

Excellent article!  Thanks for sharing the information.  Many Native Americans from my community are incarcerated in federal prisons and this will give hope to their families to get them home in times of need.

I wonder how many of these cases involve “for profit” prisons.

The US incarcerates more of its people than almost any other country. Can we still claim with a straight face to be a civilized country?

As a start, eliminate privately run prisons. When prisons are run for profit, there is every incentive to imprison people for petty, non-violent crimes, and to prolong prison terms—at tax payer expense, not to mention the untold human misery. No humane society should tolerate such a perverse system. Shame on us!

Secondly, the vast majority of prison inmates are drug users or petty dealers. It is time to come up with better policies regarding drug use. No wholesale legalization. But plenty of room for more thoughtful and smarter ways to deal with less serious drugs.

The bottom line is: prisons are for only for serious and violent crimes.

“If you cant do the time dont do the crime.” That said the prison system is s selfserving system that has so many in that have no business being incarcerated except they help to show how hard on crime some pols are
Just note the texas man who spent 25 yrs in prisonr for a crime he didnt commit because the prosecutor lied. He became a judge but now had to serve 5 days for taking away half of a mans life. Who said government has a heart!

There are many things the public is not aware of about our exploding incarcertion.  One little known fact is that many non-violent marijuana offenders are housed in high security prisons because of the length of their sentences.  This gives the impression that we have more violent criminals and the BOP can justify higher budgets. 

You can view some of these non-violent marijuana offenders on the web site life for pot.  It is a waste of fiscal resources and does not serve justice.

It also is wrong that released prisoners who are elderly or ill and have no caring financially stable family, might be “better off” in prison instead of homeless on the street, ignored by social welfare systems.

It is only through the full repeal of the prohibition of ALL drugs and subsequently treating drug use as a public health issue that we will quell this insanity. Drugs and it’s is use are only one side for it’s the revenue of its illegal sale that provides the vast majority of funding for a great deal more crime. For without those illicit proceeds inner city youth would no longer have rich drug dealers to lookup too but instead see more mainstream characters as inspiration. Prohibition did not work in the early part of last century why do we as a society keep redoubling and redoubling our efforts into a flawed and failed policy. Why, because we are indoctrinated into this belief and even though it’s the single worst program in the government many line up behind it. We are destined to repeat mistakes if we are too ignorant to learn from our past. We fill our jails with drug users and street level dealers only to have them emerge from prison hardened and even more educated in violence and what was a niaeve drug user is now a savvy thug. Fail America, epic fail. Most people emerge from prison worse than the were and when they are not, as it appears in the above case, we treat them as if they were. It’s so counterintuitive to me

We all would be better off if scum like K. Kenney disappeared from the world.  Look!  The reason this goes on is that the profit prisons lobby the corrupt congress and prison bureau and pay enormous sums to these pigs at the trough.  The case in Pennsylvania clearly establishes this fact: a judge was sending non-violent juvenilles to prison at an astonishing rate because he was getting a kick-back per child incarcerated. We cannot trust congress, the President, cops, the FBI, CIA, Sec Service, the Federal Agencies: IRS, HHS, Bureau Prisons since we no longer have a democracy and these federal employees can do whatever they want because of immunity.  Look at the number of innocent people killed by the pig cops - shooting a person 12 times who does not even have a gun! Revolution Now!

Deniece Jones

Dec. 7, 2013, 2:51 p.m.

The “expanded” provision for Compassionate Release is not new. The law was changed to accomodate this provision circa 2007. To our knowledge, it has never been utilized to assist parent such as Ms. Barnes, in a similar situation. Unfortunately, the majority of requests are not given serious consideration. Why do you think it took an Executive Clemency from Obama to get a release for Ms. Jennings.

sharon thorne

Dec. 9, 2013, 10:14 a.m.

My sister is at medical prison in fort worth texas cars well she has 25 different medical problems which includes cold she is on oxgen twenty four hours a day and on a walker has to do without oxygen while bathing she is brittle diabetic there is no doubt in my mind that the bop medical neglect has made her health deterate and councelers say she is not eligable to aply for compassionate release I sent a certified letter of request to fbop hazelton for compassionate release to the warden and have heard nothing nor has my sister so as far as I can see nothing has changed with compassionate release my sister is a non violent drug offender with no prior criminal history serving eight years for meth

Dieter Hackenbroch

Dec. 24, 2013, 2:42 p.m.

I spend 40 days more in Prison, because I could not give a Urine sample within 2 hours, because I urinated prior to the testing I did not know I had to do and I found out I have shy Bladder Syndrom. The BOP does not recognice the syndrom and the remedy procedure in the prison is flawd. An inmate needs a Lawyer in prison to do the correct procedure, but ther are no Lawyers to help you in Prison and you get denied of not following the procedure prperly. I had never taken drugs in my life and that was written in my files, but they charged me with an automatic admittence. I spend 13 days out of the 21 days in the diciplinary holding cell. They give you 2 years to file with the court system, but it is impossible to do so while you are incarcerated and by the time I got out, it was too late to file. So, I lost 40 days good tome and I had to do a urine test every month for 24 month and I had to learn to hold my piss for far too long than medically dangerous time.

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