Too Many In-Custody Deaths of BOP Prisoners are Unnecessary and Preventable

Loaded on DEC. 1, 2021 by Casey Bastian published in Prison Legal News December, 2021, page 44Filed under: Compassionate Release. Location: United States of America. by Casey J. Bastian William Figueria was imprisoned at Butner, a federal facility in North Carolina. Figueria was 63-years-old, and was serving a 30-month sentence for Distribution of Cocaine Base. On April 20, 2020, Figueria died as a result of his significant underlying medical conditions which included chronic hepatitis C, anemia, type-2 diabetes, esophageal varices, and cirrhosis of the liver. His release date was that November; a mere six and a half months away. The Bureau of Prisons failed this man. Why didn’t the BOP recognize the cruelty, and danger, of a terminal, elderly man, serving a very short sentence for a non-violent offense, remaining in prison under these circumstances? A death in a cold, sterile prison setting without the comfort of loved ones when that is not necessary should be a circumstance that offends any objective human being. The separation from society and loved ones is the punishment though. Our system effectively functions as a mechanism for inflicting unnecessary and wanton cruelty devoid of compassion. Such is not formally part of any imposed sentence. Yet far too often, a prisoner dies behind the walls and fences, alone, and with no one to provide real comfort in their final moments on Earth. Very few offenders are specifically sentenced to death at the hands of the state. While the number of defendants that receive an imposed sentence of life imprisonment is tragically high in the American justice system, a vast majority of prisoners do have a release date, even if they will not live long enough to reach it. No preventable cause should become a reason for any prisoner to die before reaching that date. Sadly, even those sentenced to life in prison under our current laws are often non-violent offenders. A drug conspiracy conviction is one example of offense conduct frequently resulting in a life sentence. But should that offense truly require that a person die in prison? Experts agree that offenders “age out” of criminal activity by their mid-50s. Changes to the system must be made to reduce the number of people who die behind bars when it is not necessary under otherwise legitimate goals of the justice system. One change did come in 2018. As a result of legislative changes to portions of Title 18, Section 3582, specifically subsection 3582(c)(1)(A), of the United States Code, made pursuant to the First Step Act of 2018 (FSA 2018), courts were given expanded authority to remedy such injustices. What we are examining here is how effective have these changes been in reducing the number of unnecessary and preventable prisoner deaths. Prior to the enactment of the FSA 2018, district courts were permitted to consider Section 3582 motions only if it had been filed by the Director of the Bureau of Prisons. An extremely rare occurrence. The FSA 2018 created a procedural mechanism that allows prisoners to file a motion for “Reduction in Sentence” (RIS) on their own behalf. Prisoners are still required to provide a formal request for an RIS to the warden of the institution at which they are currently housed. Pending a formal written denial, or the lapse of 30 days with no response after requested submission, whichever comes first, a prisoner may proceed to a district court. District Courts may now reduce a term of imposed imprisonment in certain circumstances when the prisoner can demonstrate “extraordinary and compelling circumstances.” This expanded remedy has allowed prisoners to submit a wide variety of potentially meritorious claims for relief. Federal courts across America have found many of these newly presented claims demonstrate the necessary extraordinary and compelling circumstances warranting an RIS. Such motions are commonly referred to as motions for “compassionate release”. While courts have found reasons to include the now defunct, but not retroactively applicable, 924(c) “stacking” provision, the majority of reasons have been health- and age-related in this current COVID era. Following the declaration of the World Health Organization that the COVID-19 outbreak had become a global pandemic, then-President Trump followed with a national health emergency declaration on March 13, 2020. The COVID-19 pandemic opened the proverbial Section 3582 floodgates. Thousands of motions were filed in district courts. The great majority were filed pro se by the prisoners and a very high percentage were denied. A comprehensive analysis of these compassionate release motions filed in calendar year 2020 (January 1, 2020 through December 31, 2020) was released by the United States Sentencing Commission (USSC). The USSC has a continuing mission to provide expansive sentencing data to the three branches of government—legislative, executive, and judicial—as well as the general public. The USSC’s latest report concerning compassionate release motions titled U.S. Sentencing Commission Compassionate Release Data Report (Report) was published in July, 2021. The Report indicates that all district courts submitted some documentation regarding compassionate release motions filed. However, court submissions prior to October 1, 2020, included in the Report data were only of motions that were granted by the courts. The courts were not required to submit documents of motions which were denied. For the period of January 1, 2020, through September 30, 2020, the USSC was gleaning documentation of denied motions from the PACER system. The USSC began requiring that the district courts submit documentation on all motions regardless of disposition beginning on October 1, 2020. At the conclusion of the calendar year, a total of 13,241 cases were reported to the USSC. Of that total, 356 were excluded from the Report data due to “indeterminable motion status.” The Report indicates that only 2,604 of the remaining 12,885 motions for compassionate release filed—approximately 20%—were actually granted. As the Report data includes a month by month analysis, it is apparent that the uptick in filings was consistent with the primary surge of COVID-19 within many areas of America. The high point was in July of 2020, with 1,563 motions filed. The virus was raging through institutions at that time and placing the lives of many prisoners in jeopardy. The Report does not include information pertaining to granted motions as to whether a higher percentage of those were age-related or likely due to underlying medical and health vulnerabilities. We do know that at least 2,604 federal prisoners were afforded the opportunity to potentially find a safer environment; quite possibly preventing many unnecessary prisoner deaths. Such concerns are not just hyperbole. During just a three-month period between March 1, 2020, through June 5, 2020, 154 prisoner deaths were reported by the Federal Bureau of Prisons (FBOP). That information was made available from a 38-page response (response) to a Freedom of Information Act (FOIA) request submitted by the Human Rights Defense Center. More than one in five of those reported deaths were COVID-related. A great majority of the other prisoner deaths reported by the FBOP were of older-aged or elderly, male prisoners with significant or terminal medical conditions. Figueria was just one example of too many prisoners in a similar circumstance. The districts of North Carolina averaged a denial rate of compassionate release motions at around 89%; a number skewed by the averaging in of the rate in Eastern District which held a rate at around 75%. Without consideration of that district, the rate would be at 95% denied in part because the Western District itself had the nation’s worst rate of denial at an astounding 98.5%. We don’t know if Figueria filed a motion for release, but he does fit into a couple of the categories for which motions were frequently granted: drug trafficking (1,365 of those granted), male (2,332 of those granted), and, the Fourth Circuit collectively had the second-highest number of motions granted at 325 total. This is second only to the Ninth Circuit which had granted a total of 466 motions. The First Circuit was the worst collective total at only 177 motions granted. The Southern District of California granted motions at a laudable rate of 50.8%, surpassed only by the District of Massachusetts at 51%, and the District of Oregon granted a substantial 67% of all motions filed. Yet the FOIA response reveals that the system did not do enough to prevent unnecessary prisoner deaths. A review of the FOIA response reveals too many tragic circumstances in which prisoners died while in custody. Suicides, deadly assaults, terminal illnesses, and especially COVID-related causes of death. The listed causes of death include: Stage IV cancers of the lungs, liver, and colon, cancer of the gallbladder with metastasis, undifferentiated carcinoma to the bones and lymph nodes, chronic liver disease, metastatic disease thought to resemble hepatocellular carcinoma, congestive heart failure, multiple system organ failure, end stage renal disease, and advanced dementia. Some of the most deadly institutions included FCC Butner, FCI Elkton, FCC Oakdale, FMC Fort Worth, and FMC Lexington. Butner alone accounted for 35 of the 154 deaths; a little more than 20% of deaths. It is more than a sad coincidence that the rate is so high for deaths while being so low for compassionate releases. Granted, at least three of these institutions are primarily medical facilities where the rate of prisoner death is naturally higher, but it is still a question of why each of these people had to die behind bars. Narajan Thadani remained in custody at a Butner facility while enduring advanced dementia, which ultimately killed him. Benjamin Cox was suffering from severe dehydration, acute renal failure, altered mental status, HIV symptoms, and fever. Due to Cox’s advanced AIDS, respiratory failure, acute renal failure, and multi-organ system failure, he was placed in palliative care, where Cox died after nine days. John Brust was 77-years-old and housed in Butner serving a ten-year sentence when he died of COVID. Another Butner prisoner was 74-year-old Ledoux-Moreno serving a 12-month and 1-day sentence for drug and firearm offenses when he died of COVID. Eric Spiwak was 73-years-old serving a little over 15 years for possession of child pornography and died while in custody at Butner of COVID related symptoms. If these stories don’t make one question the manner in which justice is handled, the story of Isaiah Bethea should. While housed at FCI Hazelton in West Virginia, Bethea was experiencing a medical emergency. When staff arrived, they immediately placed him in restraints. The response states that, “Once in the cell inmate Bethea remained unresponsive. Staff removed [Bethea’s cell mate] from the ground and placed inmate Bethea on the ground...” Bethea was pronounced dead shortly after these events. Editor’s Note: These reports do not explain what role, if any, medical neglect or indifference played in each prisoners’ death but given the systemic indifference to prisoners’ medical care and needs it is likely to be substantial. No one in Congress or the Biden administration appears to be concerned or interested in these prisoner deaths or preventing future prisoner deaths, even as COVID rages on in our nation’s prisons.

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