The Federal Bureau of Prisons (BOP) is known for rarely if ever allowing early release for Federal prisoners for medical illness. As a general rule only FDA approved drugs with a proper Doctor’s prescription are allowed within Federal Prisons, even if your favorite Clearwater Criminal Defense Lawyer tries to hide some in a birthday cake with the nail file.
|Joseph Wright, Experiment on Bird, 1768|
It’s important for defense attorneys to understand the BOP regulations for drugs that can be administered in Federal Prison. I had a client who had committed in access of half a million dollars in fraud, scored a minimum of 96 months in jail on the Presentencing Report and had a pending Trafficking in Marijuana from New Orleans; he was also a very sick man with hepatitis C.
At sentencing I argued that the Defendant was bravely being a human guinea pig by taking experimental non-FDA approved drugs from Shands Hospital. And further at sentencing we established that he’d bravely been testing the new drugs which could kill him yet at the same time could be the only thing keeping him alive. Further, since the experimental drugs were not FDA approved, no Federal Prison could give the drugs to him and the kind Doctors at Shands wanted to continue their experiments on the Defendant. The Judge over the Government’s strong objections did not sentence the Defendant to any prison time at all.
But what if a Defendant is already in Jail. How do you establish that he is so gravely ill that he should be released? Here from defense attorney Amy Baron-Evans is a success in forcing BOP to release an inmate based on compassionate release:
BOP rarely files a motion for early release under 18 U.S.C. § 3582(c)(1)(A) when an inmate has a terminal illness or for other extraordinary and compelling reasons under USSG 1B1.13. In this case, the inmate, Phillip Smith, was diagnosed with acute myelogenous leukemia in August 2011, but BOP twice refused to file the motion because, it said, his criminal history outweighed his medical needs (and imminent death). Phillip contacted his lawyer, Ruben Iniguez, and Ruben and Steve Sady filed a motion with the court, contending that BOP was putting itself in the position of the judge, not filing the motion unless it thought the motion should be granted. After a couple of weeks of litigation, BOP agreed to file the motion, and the judge immediately ordered Mr. Smith’s release on March 12, 2012, seven months after the motion should have been filed. Mr. Smith gave a videotaped interview from home on April 2 and died April 9. Hundreds of people die of natural causes in BOP custody every year but BOP filed only 55 motions from 2009 to 2011. This was an unusual case in that the client called his lawyer and the lawyer took action that put pressure on BOP to file the motion.