Compassion For Dying Prisoners Bogged Down in Delays, Red Tape and Legal, Moral Disagreements
President Joe Biden showed his compassion by rescuing prisoners from the death penalty and now is the time to revise and bolster laws that allow release of terminally ill prisoners.
The issue has come into focus in the case of a North Carolina bank robber who killed two bank clerks in 2017 and was sentenced to death. Brandon Council, 38, was convicted in September 2019 in the robbery and double murders of Crescom (N.C.) Bank employees Donna Major, 59, and Katie Skeen, 36. Council was among 36 death row prisoners whose lives were spared and must now spend the rest of their lives in prison.
Now Council wants the government to be “compassionate” and release him from prison. In a motion filed in U.S. District Court in Florence, N.C., Council argues for a compassionate release because he’s been subjected to “severe, unnecessary, and unjustifiable psychological harm” that “can only be accurately construed and assimilated as an act of torture” since he was permanently housed to solitary confinement on Nov. 4, 2019.
Council should not be given back his freedom because he does not qualify under the federal or state guidelines for compassionate release. But many prisoners in state and federal penitentiaries around the nation should be allowed to live out their lives away from prison.
Council has petitioned a federal judge to release him under the government’s “First Step Act,” passed by Congress in 2018. The program has strict criteria, but it has been rife with administrative and legal problems leading to relatively few prisoners being set free because of delays, uncertainty and uneven implementation of the law.
For example, many prisoners who are eligible for compassionate release because they are terminally ill, end up dying in prison before their cases are processed due to case backlogs and narrow interpretation of the law. One factor is it is often difficult to predict the life expectancy of prisoners with various serious ailments. Prisoners who are awaiting compassionate release also often die in prisons where advanced medical care and hospice care is not offered.
One example of compassionate release was the liberation of Herman Wallace from the Louisiana State Penitentiary in 2013. A judge permitted Wallace to spend the rest of his life in a personal care home. He died of liver cancer three days after his release. Wallace, Robert Hillary King and Albert Woodfox, African American members of the Black Panther Party, were known as the “Angola Three.” Wallace was convicted of killing a prison corrections officer. He and King served more than 40 years each in solitary, considered the longest period of solitary confinement in American prison history.
Lynne Stewart, a criminal defense attorney, was convicted in 2009 of illegally passing messages from imprisoned terrorist Omar Abdel-Rahman (the “Blind Sheikh”) to his followers in the terrorist group, al-Jama’a al-Islamiyya. Abdel-Rahman was convicted in connection with the first World Trade Center bombing in February 1993.
Judge John Koeltl sentenced Stewart to 10 years in prison, but after serving four years in prison, on December 31, 2013, Koeltl ordered the 74-year-old Stewart released from prison because of her terminal breast cancer. Koeltl cited the incurable nature of Stewart’s disease and the “relatively limited risk” of recidivism and danger to the community upon release. Stewart died in March 2017.
Compassionate release prisoners have received serious or terminal diagnoses, like cancer and heart disease. They may be undergoing chemotherapy, radiation, major surgery, and other treatments that require care beyond what the prison infirmary can provide.
Prisoners in many state institutions also are eligible for compassionate release but program criteria differ, and the programs are often rife with bureaucratic issues and delays.
In Hawaii, for example, under half of the prisoners who had been approved for release ended up staying in prison.
In Wyoming, a prisoner seeking release must have a life expectancy of 12 months or less. In Ohio, the life expectancy must be six months or less. In some states, prisoners free on compassionate release are returned to prison if their conditions improve.
Some states have expanded guidelines for compassionate release, as in New York where candidates include both the terminally ill and chronically ill in the absence of a prognosis of imminent death. The change has not resulted in more releases.
Many who are eligible for compassionate release on grounds of terminal illness and who have applications pending, die in prison before their cases are processed due to case backlogs and narrow interpretation of the law.
The U.S. Sentencing Commission reported in 2023 that prisoners who were unchained because of compassionate release had been identified by the Bureau of Prisons as low-risk, and more than half were convicted of nonviolent drug offenses. Two-thirds were people of color and more than 40 percent had originally been sentenced to at least 20 years in prison before their release.
Under compassionate release, prisoners can be set free if they are dying or have a dependent child or terminally ill parent who needs care. The criteria are difficult for prisoners to prove and justify and families and prisoners often don’t know compassionate release is available.
The Sentencing Project reported that as of 2023, compassionate release had been granted to 4,560 people out of more than 2 million prisoners in federal and state facilities and local jails. The United States has the highest incarceration rate in the world with an estimated 174,700 federal prisoners and 1.63 million in state facilities.
The COVID-19 pandemic led to thousands of compassionate release motions, most filed by offenders. The grant rate among people applying for compassionate release rose to 27 percent in the height of the pandemic. For individuals granted compassionate release in 2020, reductions in sentence were significant, with an average reduction of nearly 5 years or nearly 40 percent of an individual’s sentence. After the pandemic, the grant rate fell to 12 percent and 13 percent in 2021 and 2022, respectively
The latest figures show that the federal Bureau of Prisons approves only about 6 percent of requests.
The Criminal Center, a criminal defense law firm specializing in federal compassionate release, reported that families and prisoners wait an average of 4.7 to 6.5 months for rulings, an ominous delay for a person with a terminal illness. One study showed that from 2014 to 2018, 81 families watched loved ones die in prison before a decision was approved on their compassionate release requests.
Under the first compassionate release law enacted in 1984, the Bureau of Prisons rarely granted petitions for release and there was no right of the prisoner to appeal. Nearly all of the compassionate release petitions that the Bureau of Prisons granted were because the prisoner had a terminal illness, typically some type of cancer.
Under First Step, prisoners may be released for serious medical conditions, family circumstances under which the prisoner is the only caregiver for a dependent child or incapacitated spouse, and “other reasons” at the discretion of the Director of the Bureau of Prisons and the reviewing court. Prisoners also may be released if they are at least 70 years old, have served at least 30 years in prison, and the Director of the Bureau of Prisons has determined that they are not a danger to the safety of the community.
A small percentage of federal prisoners meet the age criteria as the average federal prison is 42 years old.
Elderly prisoners are at further risk in prison because incarcerated individuals age faster as a result of prison conditions. One study showed that someone in prison has the equivalent health of someone 10 to 15 years older in the outside world. Older adult prisoners are also much more susceptible to illness, something that is further exacerbated by poor prison healthcare. Prisons also are not usually equipped to help prisoners living with neurocognitive conditions like dementia.
Most states, like California, offer a version of compassionate release for state prisoners. States that do not offer such compassion include Illinois, Massachusetts, South Carolina, South Dakota, Utah and Iowa.
Compassionate release was extended under the First Step Act but it remains onerous and likely impossible for prisoners, even if they meet the criteria.
Federal prisoners may bring a motion to the court for release. They must first either exhaust administrative remedies with the Bureau of Prisons or have a compassionate release motion pending before the Bureau of Prisons for at least 30 days without receiving an answer.
The program has been inconsistently applied. For example, in 2019, compassionate release was approved in a federal court in Ohio for Anthony Bucci. Bucci had served around six years of a 12-year sentence for drug trafficking, money laundering and tax evasion. A judge agreed with Bucci’s arguments that he should be released because he was the only available caregiver for his terminally ill mother.
However, another judge rejected a request of another federal prisoner on similar grounds. The prisoner, William Ingram was serving an 8-year sentence for receiving child pornography and violating the terms of his pre-trial release. Ingram had served around 7 years when he applied for compassionate release because he was the only available caregiver for his mother, who was terminally ill. The judge denied Ingram’s motion for compassionate release, citing that “[m]any, if not all inmates have aging and sick parents. Such circumstance is not extraordinary.”
Concerns have been raised that releasing prisoners, particularly elderly prisoners, poses a danger to the community. The Vera Institute, a nonprofit organization that works to end mass incarceration, reported in 2017 that “recidivism research demonstrates that arrest rates drop to just more than 2 percent in people ages 50 to 65 years old and to almost zero percent for those older than 65.”
Age alone does not qualify a prisoner for compassionate release. Most elderly prisoners die in jail, like Theodore Sypnier.
As of April 2022, Sypnier was the oldest person held in an American prison. Sypnier died of natural causes in late 2010 at 101 years old, at the Groveland (N.Y.) Correctional Facility.
Sypnier was a pedophile who had a long history of sexually abusing children. His first conviction was in 1987, and he was only given three years' probation for sex abuse. He first went to jail for one year in 1994 for sexually abusing a minor. His last conviction was in 2000 after he committed violent sexual abuse on two young sisters the year before. He would have been eligible for parole in 2012.