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

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.”

Courtesy: ( )


Maharashtra SIC withdraws order on blocking access to building plan

Following strong protests from RTI activists and citizens, the Maharashtra SIC withdrawn his order the blocked access to building plans under the transparency law

Following strong protest by activist and citizens, the Maharashtra state chief information commissioner (SIC) has withdrawn his ‘controversial’ order on blocking access to building plans or other document (like interior plans) to anyone under the Right to Information (RTI) Act.


RTI activists Shailesh Gandhi, who also served as Central Information Commissioner, and Bhaskar Prabhu had filed a complaint against the SIC order. They pointed out to Ratnakar Gaikwad, the SIC that his order was not as per the law and would lead to encouraging illegal building activities.


"After hearing our submissions Mr Gaikwad has very wisely decided to withdraw the controversial order. This is a very good action and must be complimented. It is in the spirit of the RTI Act," said Mr Gandhi in a statement.


The SIC, in his order on 26 September 2013 had directed all local bodies in the state not to disclose building plans or other document (like interior plans) to anyone under the RTI Act, citing security concerns.


The SIC issued the order using powers vested under Section 19(8)(c) and 25(5) of the RTI Act, which said, "All municipal corporations, municipalities in the state are directed not to provide building plans or other related documents of public buildings including government and semi-government offices, hotels, gymkhanas, hospitals, malls, IT and commercial buildings. Similarly, in case of private buildings, interior plans will not be provided under RTI unless it is proved that the information sought is in public interest."


The order came as shock to several RTI activists such as MR Gandhi (who served as Central Information Commissioner) and Mr Prabhu, who are working on placing all permissions granted, approval plans and concessions for several buildings on the website of BrihanMumbai Municipal Corp (BMC). Both, Gandhi and Prabhu are part of the BMC's technical advisory committee (TAC). The TAC was on the verge of ensuring suo moto disclosure of all building plans, and related documents by BMC.


RTI activist Anil Galgali, in a letter sent to Maharashtra governor K Shankarnarayan, chief minister Prithviraj Chavan and chief secretary Jayant Banthiya has questioned the issuance of the order by Gaikwad. "...the order is bad in law, without application of mind, illegal, unconstitutional and against the RTI Act. The Information Commissioner has to pass orders within the purview of RTI Act on a case which is presented before it. It has no powers to pass any general orders/law, which is vested with either the government or the Legislature," Galgali said.


According to the SIC, on 25 September 2013, Subhash Desai, member of legislative assembly (MLA) from Shiv Sena wrote to him about serious lapses committed by Public Information Officers (PIOs) while furnishing information about building plans and these PIOs are violating Sections 8 (a, d), 9 and 11 of the RTI Act. Mr Desai requested the SIC to instrct BMC, MHADA and MMRDA not to provide information about public places like government/semi-government building, hotels, gymkhanas, hospitals, malls, IT buildings and commercial buildings. "Since the Commission was also of the same opinion, an order was issued on 26 September 2013 under Section 19(8) and 25(5) of the RTI Act," Mr Gaikwad stated in his order issued on 4 December 2013.


He, however, had cautioned public authorities to exercise adequate caution when demand for the plans of public utilities or buildings are made. He said, "Public authorities must consider if there is may be some danger to national security or public safety if these plans are given."


Welcoming the SIC's decision to withdraw the controversial order, Mr Gandhi said, "Citizens must point out mistakes to public servants who must be open to accepting citizens’ viewpoints. Together all of us must work to change and improve our governance.  Public servants and citizens are not in an adversarial relationship. We should attempt to achieve our goal of a better Nation through cooperation".



nagesh kini

3 years ago

Kudos to the MoneyLife veterans Shaileshbhai and Bhaskar for so gallantly taken on the SIC head on and setting matters right.
They need all our support. May their tribe increase. Keep it up!

Tarun Tejpal case: Goa police may summon Shoma Chowdhary, three others

Tarun Tejpal was subjected to a second round of medical tests on Wednesday even as Goa Police prepared to issue summons to Tehelka’s former managing editor Shoma Chaudhury and three others for recording their statements before a magistrate

The Goa police are likely to summon Shoma Chaowdhary, former managing editor of Tehelka and three other witnesses to record their statement before a magistrate in the case of alleged sexual assault against the magazine's editor Tarun Tejpal. Meanwhile, the Tehelka founder editor was today subjected to a second round of medical tests.


Tejpal, arrested for alleged sexual assault and rape of a junior woman colleague, had undergone several medical examinations on Monday, including a potency test, whose result was positive.


A senior Crime Branch official had said, "We have sought permission from the court to summon Chowdhary and three other witnesses and register their statement before the magistrate".


The investigating agency had already recorded a statement of Chowdhary during the initial stage of investigation in the case by meeting her at the Tehelka office in New Delhi, before she quit the position.


Officials said that the statement of Chowdhary is very crucial for the case as she was the first person to have known about the alleged sexual assault.


The official said that all the four would be called after the court gives the date to record the statement.


Tejpal was arrested on 30th November by crime branch after his anticipatory bail petition was rejected by a sessions court. On 1st December, he was remanded in six-day police custody by a court in the state.


A woman journalist, who was employed with Tehelka, had accused Tejpal of sexually assaulting her twice on 7th and 8 November in a lift in a five-star hotel in Goa.


He has been booked under Sections 354A (outraging the modesty of a woman) and 376 (2)(K) (custodial rape) of IPC.


The woman journalist had mentioned in her statement that she had interacted with three of her colleagues soon after the alleged assault happened at a Goa hotel lift.


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