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Federal Judge Tells BOP Officials They “Are Not Above the Law”

by Casey J. Bastian

On October 4, 2022, Judge Roy B. Dalton, Jr. of the federal court for the Middle District of Florida excoriated officials with the federal Bureau of Prisons (BOP) and its Seagoville Federal Correctional Institution, holding them in contempt for showing deliberate indifference to prisoner Frederick Mervin Bardell. In early 2021, the 54-year-old prisoner died of metastatic colon cancer that BOP failed to treat – a horrendous outcome that had a 71% chance of being avoided, according to the prisoner’s doctor.

Bardell was incarcerated in June 2012 to serve a 151-month sentence for a child pornography conviction. While at Seagoville, he “developed an intestinal mass that developed into metastatic colon cancer,” as the Court later recalled. With the aid of attorney Kimberly A. Coepland of Jessup, Georgia, Bardell filed an emergency motion for reduction in sentence on November 6, 2020, under 18 U.S.C. § 3582, et seq., commonly referred to as “compassionate release.” His claim was supported by Dr. Celio O. Burrowes, who opined that the prisoner most likely had “cancer of the colon with likely metastasis to the liver.”

 Concerned by these allegations, the Court ordered the government to respond and provide Bardell’s medical and administrative records. Assistant U.S. Attorney Emily C.L. Chang responded that COVID-19 protocols were in place, that Bardell’s condition wasn’t terminal and that adequate care was available from the BOP. Based on these assurances, the Court denied Bardell’s motion. However, a copy of the order was served on Seagoville Warden Kristi Zook so that she could address the claims of delayed diagnosis.

On February 2, 2021, Bardell’s counsel filed a second emergency motion. A board-certified oncologist declared that Bardell “required immediate specialized treatment from a medical oncologist.” The oncologist also said that BOP’s delays “allowed this tumor to progress from a stage III with an average cure rate of 71 percent in November 2019 to a stage IV disease in September 2020.” The Court ordered the government to respond within 48 hours.

The government insisted there was “no evidence of malignancy,” that colonoscopy results were still pending, and that there was no evidence that Bardell had cancer – let alone terminal cancer. It said the motion should be denied because adequate care was being provided. Of course, Bardell did not get adequate care in custody, and his condition was indeed terminal.

The Court ordered Bardell released as soon as an appropriate release plan was approved. BOP ignored the order and immediately released Bardell. Instead of a medical transport, as Bardell’s counsel was arranging, BOP forced Bardell’s parents to pay nearly $500 for a commercial flight from Texas to their home in Florida. BOP had a “trustee-inmate” drive Bardell to the Dallas-Ft. Worth airport, where the trustee dropped him at the curb, unassisted and without a wheelchair, because he was under the belief that he could not do anything else.

Emaciated and incontinent, Bardell was forced to navigate layovers and plane changes unassisted. A good-Samaritan helped him off the plane in Jacksonville, where his parents met their nearly unrecognizable child – a “whittled old man with gray hair.” Bardell had a “tumor protruding from his stomach,” he was “visibly weak and bleeding,” and he had soiled himself during his “not so bon voyage,” the Court recalled. Bardell was placed in a car, where his father used his own shirt on the seat to “absorb the blood and feces.”

Bardell was driven immediately to a local hospital, where pictures taken upon arrival showed a person reminiscent of those released from Holocaust concentration camps after WWII. Bardell would never leave the hospital, dying a horrible death nine days after release.

In response, the Court issued an order to show cause why BOP and Warden Zook should not be found in civil contempt for violating Bardell’s release order. The Court appointed a special master “to develop a record for further investigation and recommendation,” with BOP on the hook for the special master’s fees. As a result of that investigation, BOP and Zook were held in civil contempt, and BOP was sanctioned. The agency must pay over $200,000 in fees to the special master and reimburse Bardell’s parents the $494.20 cost of the plane ticket. The Court admonished BOP and Zook “for their blatant violation of a Court order and sheer disregard for human dignity,” adding that Zook “as an individual should be deeply ashamed” for the suffering Bardell suffered before death.

Medical neglect in state and federal penal facilities is “an ongoing constitutional disaster,” Reason magazine noted. Federal judges have chastised the Arizona and Illinois prison systems for failing to address medical neglect. [See: PLN, Dec. 2022, p.1; and Jan. 2023, p.12.] New York City’s jail system has been threatened with federal receivership for its own ongoing constitutional mess at Riker’s Island. [See: PLN, Oct. 2022, p.24.]

BOP is faring no better. “It takes a deeply rotten culture to make otherwise decent people act as these prison officials did,” said Kevin Ring, president of sentencing reform nonprofit Families Against Mandatory Minimums. He added, “The BOP is in desperate need of oversight.”

The Court said it would provide that oversight, since the imposed sanctions are “grossly inadequate to address the callous disregard” BOP showed to Bardell. Vowing to do “everything in its power to ensure that the BOP is held to account for its demonstrated contempt for the safety and dignity of the human lives in its care,” the Court retained jurisdiction to investigate the “truthfulness” of the government’s filings. It further recommended that the Attorney General or the Office of the Inspector General investigate the matter.

The Court said it is “hopeful” that these “proceedings will illuminate the BOP’s arrogant – and wholly mistaken – notion that it is beyond reproach.” It emphasized that BOP officials “are not above the law or beyond [the Court’s] reach however insular may be their operation.” See: USA v. Bardell, USDC (M.D. Fla.), Case No. 6:11-cr-00401.

Additional source: Reason

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