Devaluing Human Dignity

I have written before about the Bureau of Prisons’ atrocious performance serving as gatekeeper for “compassionate release” motions under 18 U.S.C. § 3582(c)(1) (and Guideline Section 1B1.13). Sadly, matters have improved little. Over at the Cato Institute, Nat Hentoff shines a light on the Bureau’s continued resistance to affording judges the opportunity to reconsider sentences previously imposed, often decades prior.

Hentoff details the dogged, pro bono efforts of Attorney Ellen Lake and “the case of 94-year-old Carlos Tapia-Ponce, one of the oldest inmates in the Federal Bureau of Prisons (BOP), who is serving a life sentence for managing a warehouse that was the site of what to this day remains the largest cocaine seizure in history.” Having had no success with an application for executive clemency filed as part of the Department of Justice’s clemency initiative, Attorney Lake began pursuing Mr. Tapia-Ponce’s compassionate release. And, when the Director refused to act on (approve or deny) the most recent recommendation that a motion be filed, Attorney Lake sought relief directly from the sentencing court.

Tapia-Ponce had been recommended for a compassionate release/reduction in sentence (CR/RIS) on two separate occasions by two different BOP wardens. The first request was filed in 2013 and denied the following year. The second petition, filed in August 2015, was still pending when Tapia-Ponce’s health deteriorated to the point where he was transferred to a BOP medical center in North Carolina.

Lake’s repeated telephone calls to the BOP’S General Counsel’s office were ignored. Concerned with her client’s failing health, Lake filed a motion asking the U.S. District Court to compel the BOP to rule on Tapia-Ponce’s pending CR/RIS petition.

A day before the scheduled court hearing, and without informing Lake of the decision before she traveled from Oakland to Los Angeles to attend the court appearance, the BOP issued its second denial of Tapia-Ponce’s petition. The government’s official notice of denial confirmed Tapia-Ponce’s many medical problems, including severe degenerative heart disease and prostate cancer.

As my news LA reports, at last week’s hearing, U.S. District Judge Terry J. Hatter, Jr. made clear that, absent a motion from the Bureau of Prisons, the Court lacked “the authority to order the convict released, even though he’s one of the oldest inmates in the federal prison system and faces serious health problems.” This is true. If the Bureau, specifically its Director, refuses to make an application under § 3582(c)(1), there is little-to-anything courts can do. To be clear, the filing of a § 3582(c)(1) motion does not result in release. It simply gives a sentencing court the chance to reconsider the original sentence imposed to determine whether, in its informed judgment, early release is warranted.

The question then becomes why the Bureau refuses to file the motion, that is, why it will not permit Judge Hatter to weigh whether a life sentence imposed on a man who was 68-years-old at the time of arrest for a nonviolent offense, whom the Court likely did not foresee living this long and costing taxpayers this much to detain and care for, can be reduced to time served. Experience suggests that wardens, like most correctional officials, are fairly conservative when it comes to prisoner management and tend to err on the side of caution, especially since their decisions and actions can impact career advancement. In Mr. Tapia-Ponce’s case, not one but two wardens recommended the Director file a § 3582(c)(1) motion, meaning, among other things, that they carefully considered controlling policy and determined that this extraordinary step was warranted. It was then that the Director, following consultation with the United States Attorney’s Office, denied the requests.

Citing to a 2015 report from the DOJ’s Office of Inspector General that “bluntly issued yet another public call to the Bureau of Prisons to quicken the pace of its efforts to release more elderly and infirm inmates from federal custody,” Nat Hentoff puts a fine point on the handling of Mr. Tapia-Ponce’s case:

Tapia-Ponce has now served 26 years in prison, during which time his wife has died. He has not seen any members of his family since his arrest. However, every week for the past 26 years, his daughters have gathered together in Juarez and spoken with their father over the telephone. What possible benefit is it to the U.S. government or any of its citizens to continue to pay for the medical care of a 94-year-old nonviolent inmate who has a loving family willing to care for him in Mexico? How does it make Americans any safer to subject this man to the torture of a slow, lonely death without the care and comfort of his family?

Shame on Obama’s Justice Department for such a callous lack of basic human decency.

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