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.
Professor Douglas Berman writes about the futility of long prison sentences for white collar defendants involving fraud and insider trading. At first glance he persuasively argues that for white collar criminals ‘shaming sanctions’ could be a more effective deterrent than jail.
Isn’t the Professor really suggesting that rich men, men of culture perhaps not unlike the Professor himself, should not have to live by the rules that the rest of us must follow and if caught need not suffer the consequences the rest of us would face.
No, the real problem with sentencing in America is in too much prosecutorial power in charging decisions, too little discretion left in the hands of Judges, and the harsh sentences for victimless crimes such as routine 25 year minimum mandatory sentences for drugs. Isn’t eleven years for an assault on the free market system and a take of nearly 54 million dollars about right? Or as one observer noted, “No matter the crime, if the rewards are great enough, people will ignore the risk of getting caught.”
Would a sign saying, “I am an INSIDER TRADING THIEF,” hung around the Defendant’s neck effectively persuade others contemplating similar crimes not to corrupt capitalism?
Nor does the Professor note that the NYTs reported that Judge Howell did reduce the guidelines sentence based on personal factors including his charity work in the community, his age and his advanced diabetes which the Court noted would make his jail time harsher than time served by a typical inmate.
And the Judge makes some telling points that show shame to be a weak cure for this disease: “Insider trading is an assault on the free markets,” said Judge Holwell, who also imposed a $10 million fine and ordered Mr. Rajaratnam to forfeit $53.8 million in ill-gotten profits, “His crimes reflect a virus in our business culture that needs to be eradicated.”
Sentenced to 11 Insider Case – NYTimes.com
Ten top American fraudsters – Telegraph
Here are two paragraph excerpts from the Professor’s Time article. What Will Deter Insider Trading? | TIME Ideas | TIME.com
Raj Rajaratnam, who was convicted of masterminding the biggest hedge-fund insider trading scheme in American history, federal prosecutors urged U.S. District Judge Richard Holwell to give him at least 20 years in prison “to send a clear and unequivocal message that illegal insider trading will not be tolerated.” Judge Holwell imposed 11 years — a relatively long sentence compared to insider-trading-Hall-of-Famers such as Ivan Boesky, who served only two years in federal prison.
A variety of shaming sanctions were widely used during the 18th Century in America, in part because prisons did not then exist and in part because shaming was viewed as a humane alternative to the death penalty, banishment or brutal physical punishments. More recently, academics have debated the potential virtues and vices of modern shaming sanctions — often after a judge has ordered a shoplifter to wear publicly a sign saying “I am a thief” or a police department has published drunk drivers’ names on billboards. Because we have never tried to make white-collar offenders “pay” for their crimes through extensive and prominent use of shaming sanctions, I cannot say with confidence that this alternative form of punishment will be more effective. But because deterrence research suggests very long prison terms for white-collar offenders may greatly extend their suffering (and taxpayer-funded imprisonment costs) with no corresponding benefit to society, I think it is time to start considering creative alternatives.
Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida
White Collar Crime Criminal Defense Attorney in St. Petersburg, Pinellas, Clearwater, FL
Criminal Defense Attorney in St. Petersburg, Pinellas, Clearwater, FL
Raj Rajaratnam sentenced to 11 years in prison for insider trading – Telegraph
Raj Rajaratnam; insider trading; sentence; hedge funds; federal prison – Los Angeles Times
FBI — Hedge Fund Founder Raj Rajaratnam Sentenced in Manhattan Federal Court to 11 Years in Prison for Insider Trading Crimes
Prison Time for Inside Trading Is Climbing – WSJ.com
Sentencing Law and Policy: Purposes of Punishment and Sentencing
|Stealing fire isn’t singe free — Prometheus having his liver eaten by an eagle. Painting byJacob Jordaens, c. 1640
The paper reports this morning that crime rates in Tampa Florida as in most of the rest of the nation drifted lower this year, something of a surprise to every Clearwater Criminal Attorneys as the number of Floridians who are incarcerated continues to rise. I’ll stop for a moment for any criminal defense attorneys, fond colleagues and friends, to wipe their eyes before they try to finish reading this sentence. There, there brighten up! It’s all in what you define as “serious crime.”
Governor Bush suggests that it was his policies of more jail cells and long term sentences that are the immediate cause of the fall of serious crime. But new studies show the truth that Florida’s prison and criminal justice system has failed to deter crime despite the use of cocaine going down in Florida as unlawful prescription fraud drug use rises, because Florida fails to do anything effective as Europe has with drug decriminalization.
And it is true that his effective leadership included the appointmant of the man who for years ran the brutal Florida prison system and who now faces Federal prison himself having just pled guilty to bribery in Federal Court. One might think that the Governor is correct, that it was his policies that forced down serious crime, if his policies in Florida might somehow have contributed to the fall in serious crime in places as far flung as New York City and San Francisco.
Yet our smiling Governor fails to note that “serious crime” is defined as violent crime and does not encompass the escalation of other very destructive crimes such as Identity Theft. Identity Theft is especially pernicious, bringing financial havoc and disorder while ruining the lives of those it touches.
Clearly the rate of serious crime falling in the United States is due to an aging population and a reasonably good economy. But it may also have something to do with the drug culture that has gone from crack cocaine and the robberies and burglaries that sustained cocaine use to the much more deliberative crimes caused by crystal methamphetamine users who often turn to nonviolent crimes such as Identity Theft, which has been defined as not serious by our government. Every crime is serious to the the family of those charged, if you’ve been charged with a serious crime call a Clearwater Criminal Defense Lawyer to help defend you.