[Deathpenalty] death penalty news----CONN., N.C., USA, US MIL., CALIF.
rhalperi at mail.smu.edu
Mon Oct 15 22:05:38 CDT 2007
Peeler jury OKs death penalty
A Superior Court jury has recommend that Russell Peeler Jr. be zentenced
Appearing to be headed toward a deadlock at noon, the , the 6 men and 6
women on the jury in Peeler's death-penalty hearing, came back sortly
after 2:30 p.m. to announce their decision.
At noon, in the fourth day of deliberations, the jury sent Superior Court
Judge Robert Devlin Jr. a note indicating a difference of opinion has
developed between jurors.
In order to give Peeler the death penalty for ordering the murders of
Karen Clarke and her 8-year-old son, Leroy "B.J." Brown Jr., the jury must
first find prosecutors have proved an aggravating factor and then balance
it against any mitigating factors. If the aggravating factors outweigh the
mitigating factors, Peeler gets the death penalty.
However, in the note, the jurors asked the judge if they find the
aggravating factors outweigh mitigating factors, can they find a life
sentence for Peeler is enough?
The judge responded they cannot. The jury then resumed deliberations.
Peeler was convicted in 2000 of 2 counts of capital felony for ordering
his younger brother, Adrian, to kill the boy and his mother.
Clarke and B.J. were shot fatally in their Earl Avenue home on Jan. 7,
1999, days before the boy was to testify against Peeler for the 1998
murder of Clarke's fiance, Rudy Snead, in a Boston Avenue barbershop.
(source: Connecticut Post)
N.C. Prison Doesn't Serve D.C. Inmates Well, Critics Say
On the surface, Rivers Correctional Institution is much as District
leaders imagined a decade ago, when they asked the federal government to
take control of its prisoners: a safe, well-maintained facility that
doesn't cost the city a penny.
The deal sent inmates, once sequestered at the Lorton complex in Northern
Virginia, anywhere the Federal Bureau of Prisons could find space. Today,
the District's nearly 7,000 inmates are spread across 75 institutions in
Rivers, however, was built specifically to house inmates from the
District. They typically fill at least 2/3 of its 1,400 beds. Many are in
on drug and parole violations. The average stay is 2 years.
Busloads of wives, mothers and children trek here on a 4-hour drive
passing fields laden with watermelons, pumpkins and rows of cotton.
The rural North Carolina prison, run by the private GEO Group, has become
a symbol for what inmates, their families and city leaders say is harsher
treatment of D.C. inmates in federal prisons compared with other inmates.
Drug treatment and job training options are inadequate, critics say. As a
result, too many inmates return home unprepared to do anything but get
The 200 miles separating the District and Winton creates its own set of
problems. Families can have difficulty getting information about
relatives' health -- or even their whereabouts -- in a system that
imprisons 193,000 nationwide. And the distance drains family resources and
isolates inmates from city services that could aid rehabilitation.
Del. Eleanor Holmes Norton (D-D.C.) has scheduled a hearing tomorrow to
ask the Bureau of Prisons about what she considers second-class treatment
of District inmates. Rivers is high on her list.
Rivers, classified as a low-security prison, sits on 257 acres a mile
outside Winton, the county seat of Hertford County. The county has 22,000
residents and, racially, looks a lot like the District: 60 percent black,
40 percent white. As the first town in North Carolina to be burned by
Union troops during the Civil War, the region is steeped in Confederate
history, with memorials to soldiers of the South in the town square and
Rebel flags displayed in windows.
Now, 4 of 5 seats on the Hertford County Commission are held by black
residents, and the elected sheriff is black, a source of pride to
Commissioner John E. Pierce, who is black. His father died in 1968 without
ever casting a ballot.
"He would come to vote, but they said he didn't pass the test, and they
told him, 'Come back next year,' " Pierce said. "He was never allowed to
When Rivers was being built in 2001, there were fears that the prison
would threaten local safety. But so far, its effects have been positive,
particularly for the economy. There are only a few large employers in
town, primarily Rivers and a steel mill. Many residents, including Pierce,
cross into southern Virginia to find work.
"It's not a lot of high-paying jobs here," said Pierce, who commutes 60
miles north to shipyards in Newport News. "It's been an asset."
The region deals with many of the same issues as the District: drugs,
"We just don't have as many," said Lt. Marty Davis of Hertford's sheriff's
department, who doesn't put much stock in rehabilitating those he locks up
in the county jail, including D.C. inmates who have completed their
sentences at Rivers but have charges pending elsewhere. On a recent
evening, Davis shook his head as he looked from the observation room at
the people playing cards outside their cells. "By the time they get here,
it's too late," he said.
Darrell Farley, 41, left Rivers in May after a 10-month stay for check
fraud. Boasting relatively new facilities and manicured grounds, Rivers
looks better than Lorton and the other two federal prisons he's done time
in during the past decade.
"It's not a dirty place," said Farley. "But they're not teaching brothers
anything. It's just like a warehouse. A lot of people just play
basketball, dominos and cards."
The GEO Group, which owns and operates Rivers, did not respond to phone
calls and e-mails about the accusations against them. It also denied The
Washington Post's requests to tour the facility, citing safety concerns.
GEO's Web site says prisoners can take classes in life skills, anger
management and parenting. It has a law library, a health-care unit and
classes for general equivalency diplomas. At a meeting last month in the
District that included both former inmates and current inmates piped in
via video, several speakers said the programs are inadequate to ensure
successful reentry into society.
The drug treatment program is not certified and is harshly criticized by
some at the Court Services and Offender Supervision Agency, the federal
agency that oversees felons from the District. Training that leads to jobs
is limited to a heating and ventilation class that serves only inmates who
are 18 to 25 years old. Many inmates are beyond that age group.
Norton and others said the federal government does not fund the programs
there as they do in other sites operated by the Bureau of Prisons.
But that's not the only problem at Rivers, according to some who monitor
A prisoner-rights group charged in a class-action lawsuit this year that
Rivers ignores serious health needs of inmates.
In August, 2 former corrections officers at the prison were indicted on
charges stemming from the beating of a prisoner in 2006. 2 others have
pleaded guilty to charges in the case.
About 200 Mexican nationals are held in Rivers for various crimes, and the
Mexican Consulate in North Carolina has launched a civil rights
investigation regarding health issues and allegations of spoiled food.
Criminologists say that keeping in touch with family helps inmates
maintain goals and stay out of trouble. With so many District inmates at
Rivers, several agencies have created direct links between Winton and
A free bus transports family members to the prison Thursdays through
Sundays. To stay in touch with her husband, Reginald Earl, Tracey A. Earl
rises to catch the bus at 4:30 a.m. and returns the same evening.
She said guards at Rivers bar visitors when their clothes test positive on
an ion scanner, which detects traces of drugs. Prison-related Web sites
and blogs are full of claims of false positives and rejection at the
"I do understand that, unfortunately, some people do attempt to smuggle
illegal drugs and contraband into the facility," she wrote to the warden
in June, "but most of the rejected visitors are law-abiding citizens that
miss their loved ones."
Carol Fennelly works to keep fathers in touch with their children. Through
her nonprofit Hope House, she runs a program in which dads read books on
tapes that are sent to their children. There's a summer camp in which
children visit the prison for a week to be with their fathers. The group
is secluded in a room, doing art projects several hours each day.
Another program links fathers and their children for an hour via
videoconference every few weeks.
At Hope House, which is on a sleepy cul-de-sac in Takoma Park, John
Jackson Jr. was talking to his 3 kids one recent day, chatting about the
hottest street gear, their grades, their behavior.
The youngest, 6-year-old J'Quan, looked away as his father spoke, hiding
his face from the 4-inch square on the computer screen where he could see
"Why y'all keep showing off in school?" Jackson asked. No answer.
"From now on, I don't want to hear nothing but good reports."
Soon, they were telling jokes. J'Quan showed his father a dance and then
rapped the lyrics to "The Message," an iconic 1982 rap song.
"Don't push me, 'cause I'm close to the edge," the boy said. "I'm trying
not to lose my head."
"That's an old song," Jackson said, throwing his head back in laughter.
This kind of connection, Fennelly said, is priceless and can give a person
hope. "They may be criminals," she said, "but they're fathers first."
(source: Washington Post)
North Carolina medical board can't discipline doctors for execution
work----The ruling from a trial court may be appealed. In a separate case,
the U.S. Supreme Court will hear arguments over the constitutionality of
lethal injection protocols.
The only state medical board in the country with policy declaring
physician participation in executions "a departure from the ethics of the
medical profession" and grounds for discipline was rebuked in state court
late last month.
Wake County (N.C.) Superior Court Judge Donald W. Stephens ruled that the
North Carolina Medical Board overstepped its authority in threatening to
punish doctors who take an active role in the death chamber. But
executions in the state will not resume due to the pending cases of five
North Carolina death-row inmates on lethal injection protocols.
North Carolina corrections officials sued the medical board in March,
saying the new threat of disciplinary action made it impossible to find
physicians to aid in executions.
The court found that a 1909 state law requiring a physician to be present
to "certify the fact of the execution" trumps the medical board's policy,
adopted in January and based on the American Medical Association's ethical
admonition against physician involvement in capital punishment.
In its policy, the medical board attempted to reconcile ethical standards
and state law by saying physicians could be present at executions in a
professional role, but that "any verbal or physical activity ... that
facilitates the execution" might be grounds for discipline.
In his opinion in North Carolina Dept. of Correction v. North Carolina
Medical Board, Stephens wrote that "logic and common sense suggest" that
the General Assembly's intent was for a doctor to be present "to perform
medical tasks attendant to an execution for which the physician is
uniquely qualified," such as determining death and ensuring that the
inmate does not suffer unnecessarily.
The court also said, "A judicial execution is not a medical event or
medical procedure" and therefore lies outside the medical board's
At press time in early October, the medical board was exploring whether to
appeal. No official decision will be made before its Oct. 17-18 meeting, a
spokesman said. The North Carolina Medical Society agrees with the AMA's
ethical opinion on doctor participation in executions but did not comment
on the court ruling and has remained neutral on the board's capital
punishment policy. The AMA also did not comment.
Physicians react to ruling
The ruling deeply disappointed physician activists who have pushed medical
boards to take a harder stance on doctor involvement in executions.
Charles M. van der Horst, MD, associate chief of the infectious diseases
division at the University of North Carolina-Chapel Hill School of
Medicine, urged the medical board to take action in April 2006 and is
organizing a physician letter-writing campaign exhorting the medical board
to appeal the ruling. Dr. van der Horst especially objected to the court's
finding that an execution using lethal injection is not a medical
"Starting IV lines, doing cut-downs, monitoring whether someone's under
general anesthesia, or alive or dead -- those are medical procedures," Dr.
van der Horst said. "The independence of the medical board has been thrown
out here. That's what they do is regulate the practice of medicine."
Arthur Zitrin, MD, the plaintiff of record in a lawsuit seeking to force
Georgia's medical board to punish doctors who aid in executions, agreed.
The court's ruling represents "an effort to supersede the medical board
whose responsibility it is, by law, to establish the standards of medical
practice and to also determine what the violations of the standards of
ethical practice would be that would allow them to discipline doctors,"
said Dr. Zitrin, professor emeritus of psychiatry at New York University
School of Medicine.
A Georgia appeals court heard arguments in Dr. Zitrin's case in April. A
decision has yet to be announced.
Not all physicians agree that it is unethical for doctors to aid in
executions. In a commentary in the September Mayo Clinic Proceedings,
Harvard Medical School associate professor of anesthesia David B. Waisel,
MD, argues that it is permissible for physicians to use medical skills to
assure that condemned inmates do not suffer during the lethal injection
But Dr. Waisel also was upset with the court's ruling, saying he was
"horrified at the prospect of government intervention" and that he would
like the disciplinary decision "to remain wholly with the medical board."
Halsey Alan Wyatt, MD, MPH, said the ruling was "great." While opposed to
the death penalty and uncomfortable with participating in it, the New
Orleans hyperbaric medicine specialist said the medical board took the
"I certainly don't think that as physicians we should be punished for
doing what we can to ensure that the execution process is carried out in a
humane and acceptable fashion," Dr. Wyatt said.
Justices to decide capital case
Meanwhile, the U.S. Supreme Court late last month agreed to hear Baze v.
Rees, the case of two Kentucky death-row inmates whose lawyers have asked
the court to set a single legal standard to judge the constitutionality of
lethal injection protocols.
Last year, federal district court judges ordered prison officials in
Missouri and California to involve doctors in executions. But officials in
both states said they had difficulty finding doctors to participate.
Subsequent rulings in those cases have said that doctors do not have to
It is unlikely the high court explicitly will ban or require physician
participation in executions, said Deborah Denno, author of "The Lethal
Injection Quandary: How Medicine Has Dismantled the Death Penalty," in
this month's Fordham Law Review. "I don't see the court saying doctors
have to be involved. That would be basically saying that a certain
profession has to partake in one of the worst punishments possible in
society," she said.
Case at a glance
Can a medical board discipline a physician for aiding an execution?
The trial court said the North Carolina Medical Board exceeded its
authority because state law calls for doctors to be involved and because
"a judicial execution is not a medical event."
Impact: The decision is a setback for physician activists who want medical
board policies that encourage doctors to heed AMA ethical policy and steer
clear of the execution chamber.
North Carolina Dept. of Correction v. North Carolina Medical Board, Wake
County, N.C., Superior Court
Judge Donald W. Stephens' ruling in North Carolina Dept. of Correction v.
North Carolina Medical Board, in pdf
North Carolina Medical Board position statement on capital punishment
"Physician Participation in Capital Punishment," Mayo Clinic Proceedings,
Sept. 1 (www.mayoclinicproceedings.com/inside.asp?AID=4463)
"When Law and Ethics Collide -- Why Physicians Participate in Executions,"
New England Journal of Medicine, March 23, 2006
Kentucky death row inmates' petition to the U.S. Supreme Court in Baze v.
Rees, in PDF
"The Lethal Injection Quandary: How Medicine Has Dismantled the Death
Penalty," Fordham Law Review, Vol. 76, No. 1, abstract; full article
available in PDF (papers.ssrn.com/sol3/papers.cfm?abstract_id=983732)
(source: Medical News)
Artist Pays Tribute To Death Row Pen Pal
Simone Sandelson was a portrait artist until one day almost 2 1/2 years
ago she answered a magazine ad seeking pen pals for death row inmates,
reports CBS News correspondent Elizabeth Palmer.
"The first letter was incredibly difficult," said Sandelson. "I think in
the end I just described the garden I was sitting in."
By chance, her correspondent turned out to be Jack Alderman, the longest
serving inmate on death row.
And his letters transformed her art.
"It just gradually started to inspire me, comments that he made," said
Sandelson. "There was one that he made, a butterfly arrived through the
barbed wire and settled on his hand."
She began to paint Jack's world, of isolation and regret, haunting images
of his dead wife's clothing.
Alderman was convicted of murdering his wife Barbara in 1974. For 33 years
he has claimed his innocence. He has been a model prisoner.
Innocent or guilty, Sandelson believes justice will not be served by
"Anybody who's spent 33 years on death row has surely done their time,"
Her paintings, as a traveling exhibit and on a Web site, became the core
of a campaign to save Alderman's life.
Finally, this summer, Sandelson traveled to the Jackson penitentiary
where, behind closed doors, she met her pen pal.
"I'm just so impressed at his courage and integrity, actually, because he
knows he probably will be executed," said Sandelson.
Alderman's father was there too, grateful to meet the artists who had
painted a portrait of him holding a picture of his condemned son.
"Well I told her that I think angels sent her," said the elder Alderman.
"I just think its something, its just unbelievable."
But then, on Oct. 5, a great blow.
Alderman's death warrant by lethal injection was issued.
The Supreme Court will soon consider whether lethal injection is a humane
method of execution. In the meantime, some state have halted executions.
Georgia has not.
Alderman is to die on Oct. 19.
The news hit Sandelson hard. Her source of comfort? Alderman himself.
"He is completely ready to die," said Sandelson. "He'd prefer to live, but
he's accepted the situation as it is. So he's actually very calm."
And the paintings she hoped might save him remain, a tribute to a most
unlikely and enriching friendship.
(source: CBS News)
Former U.S. commander at Saddam's jail goes on trial for aiding the enemy
The court-martial of a former U.S. military police commander at the jail
that housed Saddam Hussein opened Monday. The suspect is accused of aiding
the enemy by allowing prisoners to use a cell phone, giving special
privileges to detainees and inappropriate conduct with an interpreter.
Lt. Col. William H. Steele, an Army reservist from Prince George, Va.,
already pleaded guilty at a pretrial hearing Oct. 7 to three of seven
charges he faces. They carry a maximum sentence of 6 years in prison,
forfeiture of pay and dismissal from the Army, according to the U.S.
He also pleaded not guilty to the remaining charges of aiding the enemy by
providing an unmonitored cell phone to prisoners, giving special
privileges to detainees, acting inappropriately with an interpreter and
failing to obey an order, the military said.
If convicted, Steele could face life in prison.
He initially faced a possible death sentence on the charge of aiding the
enemy, which, under U.S. military law, is a capital offense, but a former
acting commander general of U.S. forces in Iraq opted to make it a
non-capital case, U.S. military spokesman Lt. Col. Rudolph Burwell said
The trial has twice been delayed to give lawyers more time to prepare. A
judge alone is hearing the case against Steele.
The alleged incidents took place from October 2005 to February 2007,
starting when Steele was commander of the 451st Military Police Detachment
at Camp Cropper prison in Baghdad, and in his later post as a senior
patrol officer at nearby Camp Victory with the 89th Military Police
During pretrial testimony in June, witnesses said Steele approved buying
Cuban cigars for Saddam Hussein, fraternized with a detainee's daughter
and used his service pistol to intimidate tower guards. He has been behind
bars in Kuwait since March.
Saddam was held at Camp Cropper until he was hanged by Iraqi authorities
Steele originally faced 9 charges, but prosecutors dismissed allegations
connected to the inappropriate relationship with the detainee's daughter
and the improper spending of government money by buying comfort items,
including Saddam's cigars, for prisoners, Burwell said.
The only other U.S. officer known to have been accused of collaborating
with the enemy since the start of the Iraq war was Capt. James J. Yee, a
Muslim chaplain who was linked to a possible espionage ring at the
Guantanamo Bay, Cuba, military prison. He was eventually cleared and given
an honorable discharge.
In pretrial hearings earlier this year, Brig. Gen. Kevin R. McBride, a
former commander of the 43rd Military Police Brigade in Iraq, said Camp
Cropper was positively reviewed by the international Red Cross during
Steele's time there.
But McBride also said Steele used his service pistol to intimidate tower
Another witness, Special Agent John C. Nocella said Steele allowed Iraqi
detainees to use his cell phone for unmonitored calls from the prison even
though he knew it was wrong.
Nocella also said Steele empathized with high-value detainees, who
included Saddam and other key figures from his regime. None of the former
regime detainees who allegedly used Steele's cell phone have been publicly
A 3rd witness, U.S. Special Agent Steven Thomas Barnes, said highly
sensitive classified documents regarding the Army's mission in Iraq were
found during a search of Steele's living quarters in Baghdad.
It was not clear whether McBride, Nocella and Barnes would be testifying
in the trial, which was expected to last through the week at a military
base in Baghdad.
(source: Associated Press)
Senior judge advises reforms to death penalty----667 prisoners are on
death row in California, with no resolution of logjam in sight
The death penalty system in California is so backed up that the state
would have to execute five prisoners a month for the next 10 years just to
clear the prisoners already on death row. The average wait for execution
in the state is 17.2 years, twice the national figure. And the backlog is
likely to grow, considering the trend: 30 people have been on death row
for more than 25 years, 119 for more than 20 years and 408 for more than a
These statistics were cited by an influential judge in a recent article,
one in a small but growing number of critiques of California's death
penalty machinery, which has proved so clogged that one jurist has called
capital punishment in the state an "illusion."
Arthur Alarcon, a veteran judge on the 9th U.S. Circuit Court of Appeals
in Los Angeles, supports capital punishment and has voted in favor of
death sentences more often than he has voted against them. His article in
the Southern California Law Review is drawing considerable attention, not
least because, unlike many critics, he does not blame delays on defense
lawyers or liberal judges.
Rather, he has called for radical overhaul of what he described as
systemic problems, including a critical shortage of defense lawyers to
represent death row inmates on appeal and an inefficient use of judicial
Alarcon suggested a major infusion of cash to attract lawyers to the
difficult cases. He also proposed shifting automatic judicial review of
death penalty cases to the state's appeals courts.
Taking sole jurisdiction from the California Supreme Court, which has had
exclusive oversight since California became a state in 1850, would require
a constitutional amendment, a tall order. Alarcon, however, said the
alternative could be dire.
"The delays in reviewing capital cases will continue to grow in California
to the point where the United States Supreme Court may some day hold that
such imprisonment is, in and of itself, cruel and unusual punishment," he
Alarcon, 81, has a long history with the death penalty. A former
prosecutor who tried death penalty cases, he served as the clemency
secretary to Gov. Edmund "Pat" Brown when Brown was considering requests
to commute death sentences.
More recently, he cast a key vote paving the way for the 1992 execution of
Robert Alton Harris, the f1st inmate put to death by the state in 25
The veteran jurist's article is being studied in legal circles at the same
time the U.S. Justice Department is putting the final touches on
regulations to give the U.S. attorney general's office increased sway over
death penalty cases, including the power to shorten death row inmates'
time to appeal convictions to federal courts.
A legal challenge to the constitutionality of execution by lethal
injection has put California executions on hold for the past 19 months.
Alarcon does not offer an opinion on either the Justice Department's
proposal or the lethal injection moratorium. Rather, his statistics-heavy
article is a dark assessment of how the death penalty, under normal
circumstances, works -- or doesn't .
California's death row, with 667 inmates, is the nation's largest. Fifty
condemned prisoners have died of old age, suicide or prison violence in
the past 3 decades, whereas 13 have been executed since capital punishment
was reinstated in 1978.
In an interview, Alarcon said he believes neglect by politicians and
particularly the failure of the Legislature and Gov. Arnold Schwarzenegger
to put more money into the process are at the root of the dysfunction.
"There may be no interest on the political side in doing something,"
Alarcon said. "They may be comfortable with a de facto abolition of
"We have found a way of honoring our ambivalence about the death penalty,"
said law professor Franklin Zimring of UC Berkeley, who has written about
capital punishment. "We hand out a lot of death sentences and then, in
many ways, are relieved when the system slows down."
Alarcon listed 20 procedural hurdles to execution, including years-long
delays in preparing trial transcripts and in appointing lawyers for
appeals and drawn-out deliberations by state and federal courts, including
the U.S. Supreme Court.
The California Supreme Court's seven justices spend about 20 percent of
their time and resources on death penalty cases, Alarcon said. He argued
that it would be wiser to spread review among the 105 justices seated in
the state's six appellate districts, subject to review by the state
The dearth of lawyers to handle death penalty appeals, which are automatic
under state law, stems from the state's serious underfunding of such work,
The hourly rate for court-appointed attorneys in capital cases is $140,
less than half the average awarded by federal courts in California to
lawyers appointed in some kinds of civil cases, Alarcon said.
The state Legislature, Alarcon said, also has failed to adequately fund
investigation costs for complicated capital appeals. The current cap on
expenses is $25,000 a case.
Elisabeth Semel, who runs the death penalty clinic at UC Berkeley's Boalt
Hall School of Law, said some private firms spend $500,000 or more
representing inmates in post-conviction cases, including locating and
interviewing witnesses and experts.
Currently, 88 inmates on death row have no lawyer for either their
mandatory direct appeals or the habeas proceedings that follow, according
to Michael Laurence, executive director of the state's Habeas Corpus
Resource Center, who was interviewed by Alarcon. And 197 have lawyers for
the direct appeal but not for the more complex habeas cases, he said.
Alarcon predicted that the situation will get worse. No lawyers have been
appointed for any death row prisoner sentenced since 2003, he said. Of the
17 sentenced to death in 2002, 2 have lawyers.
California Chief Justice Ronald George said Alarcon's proposals "merit
"I don't favor arbitrary time limits" for resolving capital cases, George
said. But he added, "We should know within 5 years if a death sentence
should be reversed or carried out ... It is a negative commentary on the
whole justice system to have these cases languish for 20 years."
(source: San Jose Mercury News)
Dying inmates may be given leniency----New guidelines, which may be
effective Nov. 1, would give judges greater power over early releases.
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
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
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
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"
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 4 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
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 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
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 3 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
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
The Bureau of Prisons rejected the request on July 22, 2004, citing "the
totality of the circumstances" and Mahoney's "multiple felony
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
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 3 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?"
source: Los Angeles Times)
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