Strategies to Help Clients When BOP Ignores Medical Needs
A terminally ill Rhode Island woman was held in jail until the day she died, despite numerous requests for medical attention.[1]
In Florida, a heart transplant recipient who was denied his anti-rejection medicine died a few days after being released from jail.[2]
Approximately 19 people incarcerated in New York City jails died last year alone while in custody.[3]
And even the courts have recognized that seeking medical assistance from the Federal Bureau of Prisons is often futile.
Since people in prison who need medical attention appear to have little recourse, it is imperative that attorneys who represent incarcerated clients continue to advocate for their clients' basic human rights.
This article will discuss what lawyers can do to assist their incarcerated clients when the BOP ignores their clients' medical needs.
Case Law Addressing Futility of Seeking BOP Assistance
Motions for compassionate release are one of the primary vehicles by which attorneys can advocate for incarcerated clients' medical needs.
In 2018, the First Step Act expanded compassionate release, allowing courts to reduce a defendant's prison term if, among other considerations, the judge determines there are extraordinary and compelling reasons to do so.
This expansion provided the basis for a dramatic increase in motions for, and judicial grants of, compassionate relief early in the COVID-19 pandemic.
Though the increase proved temporary as the course of the pandemic slowed, incarcerated clients' medical needs have certainly not abated since 2020.
Indeed, courts around the country evaluating motions for compassionate release in the past eight months have recognized that it can be virtually impossible to get medical assistance in a BOP facility.
Defense attorneys should use this precedent in making any post-sentence application in this post-pandemic world.
U.S. v. Johnson
In April, the U.S. District Court for the Eastern District of New York waived the administrative exhaustion requirement for compassionate release in U.S. v. Johnson.[4]
The court held that "defendants virtually never succeed in obtaining BOP assistance in moving for compassionate release, even in the approximately 31% of cases in which the defendants ultimately met the criteria for sentence reduction"[5] and were granted compassionate release by a court.
The court further held that "[t]he BOP has simply declined to pursue compassionate release requests, regardless of how urgent or meritorious they are."[6]
U.S. v. Lopez
The U.S. District Court for the Northern District of Illinois held in February in U.S. v. Lopez that under the BOP's conditions, the defendant's "continued incarceration [could] not be justified" because he had "no way to meet his serious medical needs and obtain the post-operative treatment ordered by his surgeons six months" prior.[7]
Despite the government maintaining that BOP personnel were adequately addressing the defendant's medical needs, the incarcerated person was never taken to any follow-up appointments that were recommended by his surgeons. He suffered from surgical-onset heart conditions — tachycardia and atrial fibrillation — and an anxiety disorder.
Relying on a long-held principle recognized by the U.S. Supreme Court,[8] the court granted compassionate release.
U.S. v. Belin
In June, the U.S. District Court for the District of New Mexico held in U.S. v. Belin "that the BOP's inadequate response to [the defendant's] medical conditions — namely its striking delays and lack of follow-up — constitute[d] an 'extraordinary and compelling' reason warranting his release."[9]
The court recognized that the BOP had "displayed a striking lack of responsiveness to symptoms that carry potentially life-threatening significance,"[10] including elevated prostate-specific antigen levels, which can be a sign of prostate cancer. The defendant had been suffering from hyperlipidemia, benign hypertrophy of the prostate and obesity.
U.S. v. English
Last December, in U.S. v. English, the U.S. District Court for the Eastern District of Michigan recognized that the defendant "surely experienced significant anxiety over an uncertain diagnosis, while BOP failed to make any meaningful treatment plan."[11]
The defendant had been diagnosed with several tumors in his lower back, chest and on the sphenoid bone behind his eye.
The court held that the BOP's inability to provide adequate medical care warranted compassionate release.
Takeaways
Defense counsel can use these recent cases to demonstrate that even though COVID-19 may no longer be a threat, if an incarcerated client has serious medical conditions and the BOP fails to provide medical care in a timely manner, that alone can create compelling and extraordinary circumstances requiring release.
It is also important to recognize that while one ailment may not seem significant, if the defendant has multiple medical conditions and the BOP is failing to respond to any them, the pattern of the BOP inadequately responding to any of the defendant's medical conditions could constitute an extraordinary and compelling reason warranting release.
Using the Recent U.S. Sentencing Guidelines Expansion
In addition to the aforementioned case law, the U.S. Sentencing Commission recently expanded the guidelines for compassionate release, which will be effective Nov. 1.
The new guidelines are consistent with the recent case law discussed above, and increase the applicability of compassionate release to incarcerated individuals who are not receiving adequate health care from the BOP.[12]
Indeed, the Sentencing Commission's amendments to the compassionate release statute reflect extraordinary and compelling medical circumstances not expressly identified in the statute, but, according to the commission, "were most often cited by courts in granting sentence reduction motions during the pandemic."[13]
The amendments recognize that defendants who are suffering from medical conditions that require long-term or specialized medical care that is not being provided by the BOP and are at risk of serious deterioration in health or death should be considered for compassionate release.
The Sentencing Commission's recent amendments demonstrate that the Sentencing Commission does not want courts to limit compassionate release to health issues related to COVID-19, but instead believes compassionate release should be expanded.
While the Sentencing Commission's amendments are not binding on courts, defense lawyers should be sure to cite to the recent amendments to show that not only do courts around the country take the health of people in prison seriously, but so does the Sentencing Commission.
Expectations
While the recent case law previously discussed and the expansion of the Sentencing Guidelines suggest some people who are incarcerated should be released due to medical issues, if counsel thinks that there is a low probability that their client will ultimately be released due to the sentencing factors enumerated in Title 18 of the U.S. Code, Section 3553(a),[14] it is still worth filing the application.
While the defendant may not be released, filing the compassionate release application will cause an assistant U.S. attorney to respond.
In order to respond to the compassionate release application, the government will contact the BOP, seek medical records and review the medical care that the BOP has been providing. This will often trigger the BOP to actually address any outstanding medical needs.
So, while the defendant may not ultimately get released from prison, they may finally get the medical attention that they have been seeking.
[3] See https://www.nytimes.com/article/rikers-deaths-jail.html.
[4] In this matter, the defendant suffered from diabetes, obesity, hypertension, and a history of smoking. While the Court found that the risk of contracting COVID-19 did not provide a compelling reason for granting compassionate release, the Court did find that the defendant's prison term, which began in 2017, had been more punitive than intended by the court because he had been incarcerated for the entirety of the COVID-19 pandemic.
[5] U.S. v. Divine Johnson, 2023 WL 3093617, (E.D.N.Y. Apr. 26, 2023).
[6] Id.
[7] United States v. Lopez, 2023 WL 2139205, at *6 (N.D. Ill. Feb. 21, 2023).
[8] The Supreme Court has recognized, "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Estelle v. Gamble, 429 U.S. 97, 103 (1976).
[9] United States v. Belin, 2023 WL 3867751, at *4 (D.N.M. June 7, 2023).
[10] Id. at *5.
[11] United States v. English, 2022 WL 17853361, at *6 (E.D. Mich. Dec. 22, 2022).
[13] See U.S. SENT'G COMM'M, COMPASSIONATE RELEASE DATA REPORT (Dec. 2022) tbls. 10, 12 & 14; see also https://www.federalregister.gov/documents/2023/05/03/2023-09332/sentencing-guidelines-for-united-states-courts
[14] In evaluating motions for compassionate release, a court must also consider the 18 U.S.C. § 3553(a) factors: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established; (5) any pertinent policy statement; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.
Reprinted with permission from Law360(c) 2023 Portfolio Media. Further duplication without permission is prohibited. All rights reserved.
