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Court Grants Compassionate Release After BOP Says Prisoner Wasn’t Dying Fast Enough

by Dale Chappell

In a case that demonstrates exactly why the First Step Act included much-needed changes for compassionate release for federal prisoners, the U.S. District Court for the District of Montana granted immediate release to a terminally ill, wheelchair-bound prisoner after the Bureau of Prisons (BOP) rejected his request by saying he wasn’t dying fast enough.

Shortly after Steve Alan Brittner was sentenced to 48 months in federal prison for conspiracy to distribute methamphetamine, he was diagnosed with brain cancer. He filed for compassionate release but was denied by the BOP because his life expectancy exceeded his remaining sentence. In October 2018, just seven months after his diagnosis, doctors told Brittner his prognosis was “poor,” and the following month they advised him to stop treatment and start end-of-life care with hospice.

When Brittner submitted another request for compassionate release, BOP officials again said his cancer wasn’t spreading fast enough; additionally, they claimed he could still care for himself. His request was denied.

But the First Step Act, enacted a month later, allowed Brittner to seek compassionate release from the sentencing court. The federal district court had no problem finding that he qualified for compassionate release.

In its objections, the BOP raised the same arguments it used to deny Brittner’s earlier requests. The district court rejected every one of the agency’s arguments, saying the BOP had “misread” the criteria for compassionate release.

First, Brittner did not have to prove his cancer had spread to show he was terminally ill, the court said. The criteria for compassionate release does list a metastatic tumor as an example of terminal illness, but that is just an example of “merely one” type of terminal illness, the court noted. And nowhere does it say anything about life expectancy in the criteria.

Further, while the inability to provide self-care is one of the criteria for compassionate release, the BOP’s combining that requirement with a terminal illness was wrong, the district court wrote. The requirements are met when “any” of the criteria are satisfied.

The court concluded that Brittner posed no safety risk to the community, his advanced cancer was terminal and treatment options had been exhausted; therefore, he met the “extraordinary and compelling” reasons for compassionate release.

Accordingly, the district court granted Brittner’s immediate release on May 1, 2019 and ordered the BOP to “promptly” follow through. See: United States. v. Brittner, U.S.D.C. (D. Mont.), Case No. 9:16-cr-00015-DLC.

Kevin Ring, president of Families Against Mandatory Minimums (FAMM), commented on Brittner’s case, saying “the First Step Act’s reforms to compassionate release worked as intended.” However, he added, “it blows my mind that the Justice Department and BOP still fought tooth and nail to keep a low-level drug offender who is dying of brain cancer and bound to a wheelchair away from his family for the final weeks of his life. They’ll say they were just doing their jobs, but their job is to do justice.”

Prior to the First Step Act’s reforms to the compassionate release process, if the BOP denied compassionate release, a prisoner was stuck with that decision. BOP records obtained by FAMM showed that from 2014 to the passage of the First Step Act in December 2018, at least 81 federal prisoners died while waiting for the BOP to review their compassionate release requests. [See: PLN, Aug. 2018, p.58; Dec. 2014, p.50]. Now, prisoners can petition the sentencing court 30 days after submitting their request if BOP officials fail to respond.

On June 19, 2019, FAMM, the Washingon Lawyers’ Committee for Civil Rights and Urban Affairs, and the National Association of Criminal Defense Lawyers (NACDL) announced the Compassionate Release Clearinghouse, which “is designed to match qualified prisoners with legal counsel should they need to fight a compassionate release denial or unanswered request in court.”

“Congress was clear that it wanted fundamental changes in compassionate release, yet we’ve seen prosecutors continue to fight requests from clearly deserving people, including individuals with terminal illnesses,” said FAMM president Ring. “It’s gratifying to know we will be able to help people in a tangible and meaningful way.”

“Sick and dying prisoners for years were unjustly denied release on compassionate release grounds by the Bureau of Prisons,” added Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “Now, prisoners will be assisted by dedicated and high-quality lawyers in seeking relief from the courts, evening the playing field, and allowing many of these prisoners to return home.”

For more information about the Compassionate Release Clearinghouse, prisoners or their family members can contact: stories@famm.org. 

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Additional sources: reason.com, famm.org