Lynne Stewart Hearing for Compassionate Release

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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    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.


    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 address the particulars of current practice.


    Not to get too lawyery about it, but (5.00 / 1) (#21)
    by Peter G on Fri Aug 09, 2013 at 10:07:28 AM EST
    this statute specifically confers the discretion to articulate administrative standards on the Sentencing Commission, not on the DOJ or BOP.  The BOP/DOJ is abusing its authority as the entity that must file the motion by usurping the discretion that has been given to a different agency.  And the BOP's standards are stricter than those articulated by the Sentencing Commission.  To that extent, I believe the BOP's policy standards are not entited to deference; indeed, they can even be described as unlawful.

    But the statute only requires (none / 0) (#27)
    by Michael Masinter on Fri Aug 09, 2013 at 07:15:28 PM EST
    DoJ/BoP make recommendations "consistent with applicable policy statements issued by the Sentencing Commission."  That language would seem to leave lots of room for DoJ/BoP to insist on deference, even assuming the statute creates a privately enforceable right to insist on release absent a BoP motion.

    No, you've misread the statute. (none / 0) (#28)
    by Peter G on Fri Aug 09, 2013 at 08:55:12 PM EST
    Look again.  That clause you quote is directed to the judge, not to the BOP.  The judge can only act pursuant to the Sentencing Commission's guidance if the BOP files the motion in the first place.  If it refuses to file for reasons inconsistent with the criteria that the judge is required to follow if they do file, then the BOP has thwarted the statutory scheme. No agency has discretion to do that.

    It prohibits a court from unilaterally modifying a sentence, but creates exceptions to that limit.  Here the relevant exception is that it can do so upon the recommendation of the director of the BoP, but it still further limits the court's authority by forbidding it from approving the recommendation unless it makes the prerequisite statutory finding and further finds that a sentence reduction is consistent with sentencing commission guidelines.  Perhaps I have misread the statute, but it seems to me only to impose constraints on release by limiting the judge's authority to act on a BoP recommendation inconsistent with sentencing commission guidelines.

    Where is the provision that obligates BoP to make the recommendation, or limits its discretion to refuse to make the recommendation, every time an individual can show that the recommendation she seeks is consistent with sentencing commission guidelines?  What provision prohibits the BoP from developing its own criteria for a recommendation as long as its criteria do not authorize release in circumstances inconsistent with the sentencing commission guidelines?

    As much as I'd like to see the expansion of compassionate release, I'm having trouble finding within the statute any provision that obligates BoP to make a recommendation simply because it could do so consistent with the guidelines.  And if that's the case, aren't we back to either  deference to BoP/DoJ or a blanket bar on motions for release absent a recommendation from BoP?


    It's my feeling that any inmate who (5.00 / 6) (#5)
    by Anne on Thu Aug 08, 2013 at 12:41:12 PM EST
    is terminally ill and has a place to go and people to care for him or her should, if her or she requests it, be released to die with whatever dignity and humanity are left.

    I don't think every inmate in that situation would ask to be allowed to go home to die, because for many of them, prison is probably the closest thing they've had to a home.

    We teach compassion by being compassionate, and denying someone the ability to die at home, or even outside the walls of a prison, makes no sense to me.

    I totally agree, (5.00 / 2) (#9)
    by Peter G on Thu Aug 08, 2013 at 03:21:06 PM EST
    at the very least for those prisoners who never legally faced -- and would not on the facts of their cases have been sentenced to -- a term of life imprisonment.

    I don't like the prison system (5.00 / 1) (#25)
    by Mikado Cat on Fri Aug 09, 2013 at 02:19:23 PM EST
    Perhaps an "acceptable" compassionate release program would allow a prisoner to choose the time of release, but for no more than six to twelve months, or some form of house arrest and restricted activity.

    I've been a cancer support volunteer and its a fight that a person needs all the moral support they can get. You need friends and family to make sure you eat even when food has no appeal, take all meds even when you don't feel like moving. Friends to remind you why you fight. Cancer while in prison sounds horrible.

    Lynne Stewart Denied Compassionate Release (5.00 / 1) (#31)
    by Ngkendall on Sat Aug 10, 2013 at 04:35:26 PM EST
    Gee, how surprising. The BOP doesn't release anyone even if diagnosed with just months to live. I represented a  client in federal custody housed at Butner, NC, who had 1-6 months to live (4th stage prostate cancer) who couldn't even lift his head up from the bed. I first went to the judge (normally the last step in the proceedings who indicated at sentencing that he did NOT want my client dying in custody. He PRE-approved the release which was then sent to the BOP with the rest of the application and it made no difference. This in spite of the fact that the family would pay all expenses and the probation officer also recommended his release.  76 years old and it was just a drug case.  He died less than 2 months later.
    Get real. This compassionate release program s a complete farce.

    Jeralyn (none / 0) (#2)
    by Visteo1 on Thu Aug 08, 2013 at 11:32:05 AM EST
    Please include some detail on how a sentence would be increased on appeal.  Maybe I am getting that wrong.

    The sentence imposed in a federal criminal case (5.00 / 1) (#15)
    by Peter G on Thu Aug 08, 2013 at 05:50:05 PM EST
    under present law can be appealed by either side if they have an argument that the sentence was contrary to law, or that it was unreasonable.  The government appealed Lynne Stewart's original sentence on the ground that it was unreasonably lenient.  The Court of Appeals agreed and sent the case back for resentencing.  At resentencing, the judge increased the sentence.

    My sympathies are negligible (none / 0) (#4)
    by CoralGables on Thu Aug 08, 2013 at 12:31:15 PM EST
    for judges and attorneys that break the law.

    All you need is sympathy... (5.00 / 6) (#8)
    by kdog on Thu Aug 08, 2013 at 02:35:52 PM EST
    for our society...such decisions are about us and what we kind of people we want to be. It's not about one inmate and how you feel about their crime, if any.

    I'm pretty good with what it says about us (2.00 / 2) (#11)
    by Thorley Winston on Thu Aug 08, 2013 at 04:03:58 PM EST
    Defendants (even terrorists) should get legal representation if they're being tried in our courts.  I also think it's entirely warranted to place restrictions or in some cases prohibit defendants from being able to pass messages to third parties.  By violating the special administrative measures which she had agreed to, her actions will probably mean that other suspects (some of whom unlike her client might actually be innocent) will subjected to even tighter restrictions than before for fear that their attorney might be as unethical as Stewart was.

    Throw the book at her.


    Book has already been thrown man... (5.00 / 6) (#19)
    by kdog on Fri Aug 09, 2013 at 07:40:26 AM EST
    The flawed, crooked, and sometimes cruel book.  The charges, the trial, the conviction, the sentence...that sh&t's all over and done.  

    Now we're talking about a dying cancer patient's compassionate release.  I don't see the harm, but I can sure see the benefit to our collective soul.  


    How hard would it be to let go of your (4.00 / 3) (#22)
    by Angel on Fri Aug 09, 2013 at 10:14:52 AM EST
    judgmentalism and accept that letting her go home is the right thing to do? She has already been judged and held accountable for her errors, and there's nothing for society to gain by keeping her in prison.  

    It's always odd when someone (none / 0) (#12)
    by CoralGables on Thu Aug 08, 2013 at 05:11:38 PM EST
    starts out as if they agree with you, and then goes to such an extreme that you find it repulsive.

    that comment was deleted (none / 0) (#14)
    by Jeralyn on Thu Aug 08, 2013 at 05:15:00 PM EST
    Just a concern (none / 0) (#13)
    by FuzzyFace on Thu Aug 08, 2013 at 05:14:24 PM EST
    When somebody convicted of terror-related offenses asks for compassionate release because they are dying...

    All I can of is Abdelbaset Ali Mohmed al-Megrahi, the Lockerbie bomber, who was released "because he only had three months to live," returned as a hero to Libya, and lived for nearly three years afterwards.

    Surely the question is, how would Stewart's release affect the general psychological aspects of the terror war? I find my compassion for those who aid terrorists to be a bit meager.

    How So... (5.00 / 3) (#23)
    by ScottW714 on Fri Aug 09, 2013 at 11:32:46 AM EST
    ...someone is thinking, maybe I will commit this crime in hopes of getting cancer so they will get early release ?

    Give me a scenario in which releasing this woman will "affect the general psychological aspects of the terror war".

    I don't know enough about the case to now if she should be released, but I know taxpayers are paying for medical treatment and incarceration and the odds of her committing another crime seems pretty slim.

    Your point about Lockerbie makes no sense, doctors determine he had three months, the cancer was uncooperative and he squeezed out 3 years. Had you been satisfied if he had lived for only a couple weeks, I doubt it.

    Being compassionate isn't about watching the scales , it's about realizing that a pound of flesh isn't gonna change a GD thing and everyone deserves compassion at some point.  The lack of it is probably the main fuel for terrorism, rigid unrelenting hatred is what drives people to this kind of madness.

    Compassion is the source, IMO, of all the violence, or rather the lack of it.  And just because someone like the Lockerbie bomber didn't show any when he committed his crimes, doesn't mean I am going to change.  And if you are trying to make the case about "psychological aspects" surely you must realize that doors swings both ways and offering compassion can only make the world a better place, even if it means not getting that pound of flesh from a villain.

    If only these folks had been granted some compassion earlier, they may have never chose the paths they did.  And by 'these folks' I mean terrorists and people who commit heinous acts in general, not Stewart.


    She is somebodies mother. (none / 0) (#16)
    by Visteo1 on Thu Aug 08, 2013 at 08:28:10 PM EST

    Not a fan of mandatory punishment (none / 0) (#17)
    by ragebot on Thu Aug 08, 2013 at 09:03:40 PM EST
    But I have to wonder what most perps found guilty of similar bad acts get slammed with.

    The original sentence was very light which resulted in the govt getting a longer one.  But I have to wonder how the second sentence compares with what usually happens.

    Not to say compassion is not justified in some cases, and perhaps in this one.

    Still I have to wonder how someone who seems to have no remorse can ask for compassion.

    There is no "usually" (5.00 / 6) (#18)
    by Peter G on Thu Aug 08, 2013 at 09:38:13 PM EST
    Her case is highly unusual, because lawyers are rarely convicted of violating Bureau of Prisons communications rules.  And because the government's theory of how Lynne Stewart conspired to provide "material support" to a foreign terrorist group by giving it "personnel" -- that is, her own action on one occasion of making a public statement on behalf of her imprisoned client stating he was not withdrawing his support for a ceasefire in Egypt -- is, shall we say, unique in the annals of criminal law.

    Also, (5.00 / 3) (#26)
    by Jeralyn on Fri Aug 09, 2013 at 05:51:21 PM EST
    She only agreed to  represent Sheik Omar Abdel Rahman a month before his trial, after his original lawyers, William Kuntsler and Ron Ruby withdrew. She had never defended a terror case, and accepted the appointment at the urging of Ramsey Clark.

    Do we have (none / 0) (#29)
    by Mikado Cat on Sat Aug 10, 2013 at 07:03:40 AM EST
    Any idea how many people in prison are dying, diagnosed with less than one or two years to live?

    How common is compassionate release?

    Like many times lately, I have little confidence that I know enough details of the cases accurately to state an opinion. Nothing seems reasonable to take at face value any more.