Dying prisoners may be given leniency

By Richard B. Schmitt

Oct. 15, 2007 12 AM PT

Times Staff Writer

WASHINGTON — By the summer of 2004, years of hard luck and hard living had caught up with Michael Paul Mahoney. He was in the very end stages of terminal non-Hodgkin’s lymphoma, and his liver was shot from years of alcohol abuse.

He wanted to come home from prison to die.

“My brother has had a pretty bad rap in life, and I am pleading for you to sign his release and let him come home to be with his family his last few weeks of life,” his sister, Dixie Taylor, wrote to the director of the federal Bureau of Prisons in July 2004.

Mahoney’s case worker supported his early release. So did the law-and-order judge who had sentenced him more than a decade earlier.

Every year, about a dozen of more than 200,000 inmates in federal custody around the country have their sentences commuted for health reasons. The actions are part of a safety valve included in an otherwise tough law enacted by Congress in 1984 that stiffened sentences in federal prison and abolished parole.

As interpreted by prison officials, the idea is to give the terminally ill -- and those so profoundly disabled that they can no longer care for themselves -- an opportunity to have their sentences commuted. The provision -- dubbed “compassionate release” by the government -- gives the inmate a chance to die at home or among loved ones, and the government a chance to pass along some of the often heavy costs of incarcerating and caring for sick prisoners.

But advocates for inmates say the way the statute is actually carried out is anything but compassionate. Few terminally ill inmates are approved for release, and the bureaucracy is such that even when people are approved, they often die before they get out. The advocates also contend that prison officials have misconstrued the original intent of Congress and interpreted the grounds for release much too narrowly.

Now, in a departure from the tough sentencing policies that it has legislated for more than two decades, Congress is poised to allow guidelines to go into effect starting Nov. 1 that would give federal judges much greater power to release federal inmates.

The new guidelines would be a victory for advocacy groups that have been seeking more lenient treatment for years. They would also put the federal government ahead of a movement in which a number of states, including California, have sought to expand their early-release laws.

But whether the Bureau of Prisons will go along is far from clear. Although compassionate releases must be ordered by federal judges, the Justice Department’s prisons bureau acts as the gatekeeper in bringing early-release requests to the courts.

A Justice Department official last year called the proposed guidelines “an excess of permissiveness” that could be “an incitement to prisoners” to file lawsuits.

The issue could present an early test for Atty. Gen.-designate Michael B. Mukasey, who faces a confirmation hearing in the Senate this week.

The new guidelines, developed by the U.S. Sentencing Commission, would empower judges to commute sentences in “extraordinary and compelling” circumstances.

Some legal experts argue that the original intent of the law was to cover health concerns and a range of purposes such as rewarding prisoners for acts of heroism or assisting the government, giving them the benefit of later changes in applicable laws, or eliminating disparities in sentences they received compared with co-defendants.

One of the proposed guidelines would allow for early release of incarcerated women with minor children in case of death or incapacitation of relatives capable of caring for the children.

Prison officials decline to say whether they will now support a more generous approach to early release. The Bureau of Prisons “will carefully assess how it may or may not affect our decisions in these matters,” spokeswoman Traci Billingsley said.

The proposed changes are putting the spotlight on current practices in granting or denying compassionate release.

The Bureau of Prisons has required that an inmate be within a year of death or else suffering from a debilitating and irreversible condition that has “eliminated or severely limited the inmate’s ability to attend to fundamental bodily functions and personal care needs,” according to a letter last year from the department to the sentencing commission obtained by the Los Angeles Times. The standard has come to be known among defense lawyers as “the death-rattle rule.”

In the last four years, the agency said it had approved 65 early releases out of 121. But those numbers exclude many more requests that do not reach headquarters because they have been dismissed in the field.

This summer, the Bureau of Prisons refused to grant an early release to an 86-year-old North Carolina woman, Alva Mae Groves, who had been sentenced to 25 years in prison for conspiring to sell crack cocaine with her son. Officials told Groves’ children that an early release was not granted because the crime was too serious and a release would send the wrong message.

Her family argued that her advanced age -- she was 74 at her sentencing -- and her multitude of health issues warranted her being released. She died in August in federal prison in Texas.

Mahoney is a “textbook example of the person who ought to have been released,” said Mary Price, general counsel of Families Against Mandatory Minimums, a Washington-based advocacy group for inmates that worked with Mahoney’s family.

Mahoney had been sentenced to 15 years in prison in 1994 for being a felon in possession of a handgun.

The law he was punished under was intended for career criminals. Mahoney’s lone encounter with the law was a conviction for selling about $300 worth of methamphetamine to an undercover cop in the 1970s. He bought the gun that got him in trouble years later, after buying a pool hall in Jackson, Tenn., and figuring he needed some protection when making bank deposits at night.

The authorities became aware that he owned a gun only after he had reported the weapon stolen, and federal agents found that he had failed to disclose his earlier drug conviction when he purchased it. Though lying on a federal gun application ordinarily carries a sentence of no more than three years in prison, the law sets a 15-year minimum for people convicted of three felonies who are found to possess a gun.

The fact that Mahoney was charged with three separate counts, because he sold the drugs in three separate transactions to the undercover cop, dictated the harsher sentence.

He petitioned the Clinton administration for clemency but was turned down.

By 2004, a decade into his term, he was bedridden and incoherent from various maladies. He was certainly not a threat to anyone, said his father, Robert Mahoney. “He could not even get out of bed,” his father said.

His case worker at the federal prison in Lexington, Ky., supported his request for early release. “He has served a significant majority of his sentence, there are no indications his early release would pose a public-safety threat, and his medical condition is predictably life-threatening in the very near foreseeable future,” wrote Darrell Lauer.

The Bureau of Prisons rejected the request on July 22, 2004, citing “the totality of the circumstances” and Mahoney’s “multiple felony convictions.”

Mahoney’s family continued to press its case.

U.S. District Judge James Todd, an appointee of President Reagan, wrote to Bureau of Prisons Director Harley Lappin on July 26, 2004, urging leniency. “Mr. Mahoney’s case has troubled me since I sentenced him in 1994,” Todd wrote. “In my judgment, Mr. Mahoney’s sentence was one of those cases in which a well-intentioned and sound law resulted in an injustice.”

Mahoney’s sister fired off an e-mail to Lappin the next day. “I think he is only holding on because he does not want to die in prison alone, and we are going to do whatever we can to see that he does not,” Taylor pleaded.

But three days later, on July 30, 2004, the prison chaplain called Mahoney’s mother to tell her that he had died, alone, in a prison hospital.

His body was shipped home, and he was buried in Jackson. He was 49.

Although acknowledging that her brother had made mistakes, Taylor thinks the way he was treated was itself a crime.

“Toward the end, he was very, very bitter,” she said. “Who wouldn’t be?”

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