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Dying prisoners may be given leniency

Proposed rules would give judges more power over early releases.

October 15, 2007|Richard B. Schmitt | Times Staff Writer

WASHINGTON — By the summer of 2004, years of hard luck and hard living had caught up with Michael Paul Mahoney. He was in the very end stages of terminal non-Hodgkin's lymphoma, and his liver was shot from years of alcohol abuse.

He wanted to come home from prison to die.

"My brother has had a pretty bad rap in life, and I am pleading for you to sign his release and let him come home to be with his family his last few weeks of life," his sister, Dixie Taylor, wrote to the director of the federal Bureau of Prisons in July 2004.

Mahoney's case worker supported his early release. So did the law-and-order judge who had sentenced him more than a decade earlier.

Every year, about a dozen of more than 200,000 inmates in federal custody around the country have their sentences commuted for health reasons. The actions are part of a safety valve included in an otherwise tough law enacted by Congress in 1984 that stiffened sentences in federal prison and abolished parole.

As interpreted by prison officials, the idea is to give the terminally ill -- and those so profoundly disabled that they can no longer care for themselves -- an opportunity to have their sentences commuted. The provision -- dubbed "compassionate release" by the government -- gives the inmate a chance to die at home or among loved ones, and the government a chance to pass along some of the often heavy costs of incarcerating and caring for sick prisoners.

But advocates for inmates say the way the statute is actually carried out is anything but compassionate. Few terminally ill inmates are approved for release, and the bureaucracy is such that even when people are approved, they often die before they get out. The advocates also contend that prison officials have misconstrued the original intent of Congress and interpreted the grounds for release much too narrowly.

Now, in a departure from the tough sentencing policies that it has legislated for more than two decades, Congress is poised to allow guidelines to go into effect starting Nov. 1 that would give federal judges much greater power to release federal inmates.

The new guidelines would be a victory for advocacy groups that have been seeking more lenient treatment for years. They would also put the federal government ahead of a movement in which a number of states, including California, have sought to expand their early-release laws.

But whether the Bureau of Prisons will go along is far from clear. Although compassionate releases must be ordered by federal judges, the Justice Department's prisons bureau acts as the gatekeeper in bringing early-release requests to the courts.

A Justice Department official last year called the proposed guidelines "an excess of permissiveness" that could be "an incitement to prisoners" to file lawsuits.

The issue could present an early test for Atty. Gen.-designate Michael B. Mukasey, who faces a confirmation hearing in the Senate this week.

The new guidelines, developed by the U.S. Sentencing Commission, would empower judges to commute sentences in "extraordinary and compelling" circumstances.

Some legal experts argue that the original intent of the law was to cover health concerns and a range of purposes such as rewarding prisoners for acts of heroism or assisting the government, giving them the benefit of later changes in applicable laws, or eliminating disparities in sentences they received compared with co-defendants.

One of the proposed guidelines would allow for early release of incarcerated women with minor children in case of death or incapacitation of relatives capable of caring for the children.

Prison officials decline to say whether they will now support a more generous approach to early release. The Bureau of Prisons "will carefully assess how it may or may not affect our decisions in these matters," spokeswoman Traci Billingsley said.

The proposed changes are putting the spotlight on current practices in granting or denying compassionate release.

The Bureau of Prisons has required that an inmate be within a year of death or else suffering from a debilitating and irreversible condition that has "eliminated or severely limited the inmate's ability to attend to fundamental bodily functions and personal care needs," according to a letter last year from the department to the sentencing commission obtained by the Los Angeles Times. The standard has come to be known among defense lawyers as "the death-rattle rule."

In the last four years, the agency said it had approved 65 early releases out of 121. But those numbers exclude many more requests that do not reach headquarters because they have been dismissed in the field.

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