Lynne Stewart Hearing for Compassionate Release

By Jeralyn, Section Inmates and Prisons
Posted on Thu Aug 08, 2013 at 06:46:00 AM EST
Tags: Lynne Stewart, compassionate release (all tags)

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Update 8/9/13: The Judge denied Lynne's request in a 25 page ruling, saying he had no authority to act without a request from BOP. If BOP reconsiders its denial and riles a request, he seems ready to grant it.

Criminal defense lawyer Lynne Stewart, serving a 10 year sentence for a terrorism related offense, is dying of cancer. The Bureau of Prisons denied her request for compassionate release. Today, the federal judge who sentenced her will hear her motion for immediate conditional release.

Her brief in support of her motion, which explains her condition and the grounds for release, is here. The Government says the judge has no authority to order her release because only the Bureau of Prisons can seek court action on a compassionate release request. (To be continued this afternoon.)

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Lynne Stewart Hearing for Compassionate Release | 30 comments (30 topical)

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Time for Presidential intervention (5.00 / 7) (#1)
by Dadler on Thu Aug 08, 2013 at 11:00:47 AM EST

Oh, wait, that's right, hope and change were just bumper stickers.

This is when the real measure of a nation's humanity is made PUblic. PU intended.

Stinks.

: That is Why She Won't Get It (5.00 / 2) (#24)
by msaroff on Fri Aug 09, 2013 at 12:20:52 PM EST

Barack Obama is determined to set examples that cow both the press and the defense bar.
It's one reason I call him the "Worst Constitutional Law Professor Ever™."

Lynne Stewart was convicted (5.00 / 1) (#3)
by gadfly on Thu Aug 08, 2013 at 11:39:42 AM EST

on 2/10/05 but did not begin serving her initial 28 month sentence until 11/19/09 largely because of delays resulting from her cancer treatments. Having served 45 months in prison with only 19 or so months to live with the pain and suffering of cancer, it seems to me that the bureaucrats have gone over the edge.

Strangely, the Morsi government was negotiating to have her client, Omar Abdel-Rahman (the Blind Sheikh) released for compassionate reasons or to be transferred to Egypt's custody. So where is Obama and the Foggy Bottom gang on this?

Stewart Had Been Free On Bail Pendiing Appeal (none / 0) (#6)
by Michael Masinter on Thu Aug 08, 2013 at 01:10:45 PM EST

Lynne Stewart did not begin serving her sentence until 11/19/09 because she had been free on bail pending her appeal of her conviction, not for reasons related to treatment her cancer, which, for much of that time, was in remission. When the panel affirmed her conviction but vacated her initial sentence as impermissibly lenient (a 92% downward departure), it first wrote:

We therefore remand the cause to the district court for further consideration of her sentence, in light of, among other things, the charges of perjury against her and of any other matter it deems necessary or advisable, and direct the court to revoke Stewart's and Yousry's bail pending appeal and to order them to surrender to the United States Marshal to begin serving their sentences forthwith.

and later concluded:

in light of the fact that we affirm on all issues related to the guilt of all defendants, the district court is directed to order Stewart and Yousry to surrender forthwith to begin serving their terms of incarceration.

Ms. Stewart should now be eligible for compassionate release on the same terms as others. I gather the government's position is that her life expectancy currently exceeds 18 months, making her ineligible for now. I have no evidence with which to assess her claim to the contrary, but if her physicians are correct, she should be eligible for consideration for release irrespective of the serious nature of the crime for which she was convicted.


She is not "ineligible" for release (5.00 / 3) (#7)
by Peter G on Thu Aug 08, 2013 at 01:31:17 PM EST

The statute authorizes the Dept of Justice (but not the defendant herself) to seek reduction of a sentence for "extraordinary and compelling reasons," without any arbitrary limitation (follow link to subsection (c)(1)). It's not even limited to health reasons, much less to life-threatening conditions, and even less to some arbitrary "months left to live" factor. The decision is to be made by the original sentencing judge. The "motion" of the Bureau of Prisons does not necessarily have to recommend a reduction; it can simply bring the situation to the court's attention. The judge's action is supposed to be consistent with policies of the Sentencing Commission, not necessarily of the Bureau of Prisons. Yet the BOP has a "policy" not to "recommend" a reduction, that is, not to even file a motion, except in the case of terminal illnesses, and then only if the life expectancy is 18 months or less (and this is a very recent improvement over their prior policy, which was 12 months or less!). The cruelty (and expense to taxpayers) of this policy was the subject of a recent GAO report, a devastating report from Human Rights Watch, and other criticism.


: Deference to Administrative Interpretation (none / 0) (#20)
by Michael Masinter on Fri Aug 09, 2013 at 08:13:31 AM EST

I know the statute sets no limits on DoJ discretion to seek release. But administrative law and separation of powers principles empower DoJ to establish guidelines for the exercise of its statutory discretion, whether formally through rulemaking (Chevron) or informally (Skidmore) or even in litigation ((Auer), and courts will defer to those guidelines absent evidence that they are arbitrary, capricious or contrary to the statute, or under Skidmore, perhaps an unreasonable interpretation of the staute.
If DoJ treats < 18 months life expectancy as a prerequisite to compassionate release, then even were DoJ's exercise of discretion subject to challenge (a difficult question in itself), I would think judicial deference to that prerequisite would prevail over an argument that it is arbitrary, capricious, contrary to law or even an unreasonable interpretation under Skidmore.
Were I AG, I would interpret the statute generously, but I am not, and am unlikely ever to be. I sought only to