The Loss of Compassion: The Gray Wave—Part 2

In a previous post, The Loss of Compassion: The Gray Wave—Part 1, I used this definition of compassion: a “sympathetic consciousness of others’ distress together with a desire to alleviate it.” People without the compassion gene stand out; there’s something missing. I saw it all the time in prison in the interaction between staff and inmates and between inmates themselves.

I recall a television news flash—a commercial plane about to land at LAX could not lower its front landing gear. I estimate that 80 percent of the inmates expressed empathy for the people on the plane facing a potential tragedy. The remaining 20 percent cheered for the plane to crash, and then they jeered when the plane landed safely on a foamed runway.

That 20 percent felt no compassion for the people on the plane. Something was missing in them, and the vacuum was noteworthy. The disconnect I saw was a lesson prison taught me—recognize and stay away from the vacuums. Compassion and incarceration are oil and water: a palpable, uncomfortable feeling that churns in the gut.

In part 1, I raised the notion of compassionate release (CR) from federal prison.[1] Under certain health-related conditions, inmates sixty-five and older may be eligible for CR. We’ve looked at a federal law that seems altruistic, almost approaching compassionate. In part 2, we’ll take a closer look at the process.

Government Red Tape

As with anything connected to receiving an entitlement from the federal government, procedural hurdles must be scaled and paperwork done before engaging the system. I believe that the federal system is inherently flawed. The process has no heart, no compassion. For example, the law requires that the federal Board of Prisons (BOP) be the party to bring a CR motion on behalf of inmates who are seeking relief under the CR law. This means only the BOP can bring a motion, in federal court, for consideration of a CR prison sentence reduction. Thus, the BOP can cut off inmates’ rights to access a federal judge for an entitlement under the law.

Roll Out the Red Tape

This is the process: an inmate, family member, or legal representative must petition the BOP to initiate a protracted process that might lead to a federal court’s having jurisdiction to hear a CR petition. An extended list of procedural obstacles must be overcome before the possibility of having one’s case heard by a federal judge. Then and only then can an inmate bring an argument contending extraordinary and compelling reasons for an early release.

To ask the BOP to bring a motion for compassionate release, the inmate submits a written request with the warden using form BP-229(13). This is a general administrative request form. The form does not mention CR, but rather contains generalized questions that infirm elderly people may have difficulty answering.

The form asks for the inmate’s request, with signature, in a large box without lines, and there’s a box for the warden to write a signed response. The second page of the form contains a box for the inmate’s appeal. Attachments, such as medical records, are allowed, and four copies of everything must be submitted using a separate BOP form to appeal the warden’s decision. A terminally ill inmate with no family or other representative would be overwhelmed or otherwise incapable of moving past the initiation process.

The Red Tape Continues

A review of the BOP guidelines for a CR petition requires a description of the “extraordinary and compelling reasons” that justify an early release. However, the BP-229(13) doesn’t request this specific information. Also required is a proposed release plan, including where the inmate will reside, how the inmate will support him- or herself, and, if the basis for the request involves the inmate’s health, information on where the inmate will receive medical treatment and how the inmate will pay for such treatment. Payment for health care outside the prison is a huge issue. Would private insurance, Medicare, or family resources pick up the bills? The government should enroll CR beneficiaries into the Medicare system with full medical coverage. Math and imagination are needed to reach such a resolve.

When the warden denies a CR request, the next step is a review by the BOP’s regional director. If the regional director denies the request, written notice must be given to the inmate stating the reasons for the denial. The inmate may appeal through the administrative remedy procedure by filing a BP-11 form with the national inmate appeals administrator in the BOP’s Office of the General Counsel.

Had enough? There’s more bureaucracy yet to come.

If the Office of the General Counsel decides the request should be denied, written notice must be given to the inmate stating the reasons for the denial. Denial by the Office of the General Counsel is considered a final administrative decision, which means that the denial cannot be challenged any further through the administrative review process or a court of law. At this point the inmate has exhausted his or her administrative remedies, so the inmate has no right to proceed to court. This is an odd situation. From my experience as an attorney, exhausting administrative remedies didn’t close the doors of the courts to my clients—rather it opened them.

An inmate may proceed to court if the director of the BOP approves an early release. The director will contact the US attorney in the district where the prisoner was convicted and ask the prosecutor to bring a motion in court requesting compassionate release on the BOP’s behalf. Almost there.

Under this awkward approach toward justice, the court will hear the motion brought by the US attorney, decide whether compassionate release is warranted, and issue an order. If the motion is granted, the court’s order is sent to the BOP, which then releases the prisoner in accordance with the terms of the order.

Let’s Get Real

The clunky process for applying for CR relief bogs down the program; thus, very few requests are granted. A March 7, 2018, report by the Marshall Project looks at the statistics for the federal program. Its finding about the number of requests for CR versus the number of approvals is startling.

[BOP] officials deny or delay the vast majority of requests, including that of one of the oldest federal prisoners, who was 94, according to new federal data analyzed by The Marshall Project and The New York Times. From 2013 to 2017, the Bureau of Prisons approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody. The bureau’s denials, a review of dozens of cases shows, often override the opinions of those closest to the prisoners, like their doctors and wardens.

A March 7, 2018, New York Times article by Christie Thompson nails the Catch-22 of the CR program. In Frail, Old and Dying, but Their Only Way Out of Prison Is a Coffin, Thompson writes, “The United States Sentencing Commission has said that such [CR] considerations are better left to judges—but judges can rule on compassionate release requests only if the Bureau of Prisons approves them first.” (Emphasis added)

In what amounts to foxes guarding the henhouse, the BOP is conflicted with its totalitarian oversight of the federal CR program. The BOP fails to exhibit compassion in its policies and approach. Because of the red tape and procedural hoops to be jumped in a time-consuming process, the federal foxes—sans the element of compassion—make many very poor and deadly decisions for inmates who no longer pose a danger to society.

I encourage everyone to read the New York Times article for specific heartbreaking stories of end-of-life tragedies at the hands of the federal government.

The Future Is Not Bright

A June 2017 Bureau of Prisons report Better Planning and Evaluation Needed to Understand and Control Rising Inmate Health Care Costs is revealing about the issue at hand: “According to BOP officials, and the 2015 DOJ OIG report, increasing numbers of aging inmates are due to (1) inmates entering the system for the first time at older ages, and (2) inmates aging over time while incarcerated and serving long sentences.” Those long sentences are traceable to Ronald Reagan’s 1982 War on Drugs with its concomitant harsh sentencing schedules. Now the Trump administration is currently focused on breaking the opiate addiction problem in this country by using increased sentencing guidelines, including the death penalty for drug dealers.

Conclusion without an Ending

The harsh treatment of dying and terminally ill inmates in prison is deplorable. While the problem is addressed in federal statutes that authorize ostensibly compassionate intervention by the BOP, in reality, the government has created a deadly loop of torturous proof and procedural impediments. The literature and data on the subject evidence a resistance to preventing harmless human beings in their final stages of life from needlessly suffering and dying while incarcerated. The government’s vacuous CR policies are incompatible with a sympathetic consciousness of others’ distress and a desire to alleviate it.

I completed this post on March 24, 2018, during the March for Our Lives movement that is swelling across the country. The marchers demand an infusion of sanity into state and federal legislatures for intelligent gun control. The growing movement is a perfect study in the force of compassion.

I’m reminded of the idiom out of the mouths of babes. I agree with the Farlex Dictionary of Idioms’ interpretation: “Children, though inexperienced, are capable of saying wise, insightful, or mature things.” The young peoples’ movement inspires a nation to get a backbone on a deeply basic life-and-death issue, and it is fueled by a flood of human compassion.

I always appreciate your comments and thoughts.

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[1] This post focuses on federal CR law, but most states also have their own CR laws.