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In Context: Lynne Stewart and the Perversion of Compassionate Release

December 10, 2013


The clock is ticking. Several months ago, people’s attorney Lynne Stewart, currently serving a 10-year federal sentence for the supposed “material support to terrorism” she rendered by properly representing an unpopular islamist client, was diagnosed as suffering from terminal cancer. Since then, her condition has steadily deteriorated, and at this point the prognosis is that she has at most 14-16 months remaining. In accordance with the Sentencing Reform Act of 1984 which provides for the “compassionate release” of prisoners facing exactly such situations—especially those who are both elderly and pose no demonstrable threat to society—Stewart has requested that she be sent home.

On September 6, she received notice that warden Jody Upton of the federal medical center at Carswell (Texas), where Stewart is now confined, had duly submitted her recommendation for an expeditious release to Bureau of Prisons director Charles E. Samuels, Jr. Since Stewart will be 74 on October 8, has never been convicted of or otherwise tied to any violent act, and is afflicted with a cancer-induced collapse of her immune system requiring her isolation from the general prison population under continuous intensive care, this one should’ve been a no-brainer. Yet, as of October 1, Samuels has maintained a conspicuous silence on the matter.

As many readers are undoubtedly aware, it’s the second time ’round the block on this score. On April 26, Stewart was notified that Warden Upton had submitted a recommendation to Samuels that she be granted a compassionate release at the earliest possible date. The recommendation was seconded by J.A. Keller, director of the BoP’s south central regional office while, at the behest of former attorney general Ramsey Clark, the federal probation office in Stewart’s home town of New York conducted an expedited review of her plan for post-release domicile, treatment at Sloan-Kettering Hospital, etc., and approved it. Samuels of its approval at about the same time he received the others’ recommendations. After that… Silence.

Finally, on June 24, Samuels denied Stewart’s request, ostensibly because her medical condition was improving and, in any case, since her life expectancy was greater than 12 months, she was ineligible for release under BoP guidelines. Both claims were spurious. The closest anything said by the doctors at Carswell came to indicating that Stewart’s health was “improving” was an observation that she seemed to be responding well to a particular chemotherapy regime and that it should therefore be continued (thus slowing the rate at which her cancer was killing her). As to the “less-than-a-year-to-live standard,” there’s nothing, either in the 1984 Act or in the Justice Department’s directives implementing it, specifying a 12-month threshold for eligibility. In other words, Samuels was invoking no authority other than his own in denying Stewart’s request.

Her attorneys quickly appealed the decision to New York federal district judge John Koettl, who’d presided at Stewart’s trial—and who, as will be discussed below, carries considerable baggage as a result—and a hearing was conducted on August 8. The upshot was that Koettl, while purporting personal outrage at the denial, professed to be powerless to alter the situation: “If I order her release, I’ll be breaking the law” (i.e., the 1984 Act, which constrains judges from granting compassionate release without being petitioned to do so by the BoP). Setting aside the obvious question of why, assuming he actually believed what he said in this regard, Koettl opted to waste everyone’s time and energy—to say nothing of raising false hopes among Stewart and her loved ones—by scheduling a hearing at all, perhaps some good may still have come of the whole charade: Koettl at least pronounced himself ready to sign an order for Stewart’s release immediately upon receipt of the requisite paperwork from the BoP.

Enter now the DoJ, which has been having its own problems with the inordinately low proportion of requests for compassionate release by plainly qualified prisoners approved by the bureau—an average of only two dozen per year for the past 30 years—a performance that has increasingly generated negative attention in today’s budget environment (incarcerating aged, sick prisoners is incredibly expensive on a per capita basis, even under the abysmal conditions prevailing in most U.S. penal institutions). Apparently, there’s been some serious backroom arm-twisting going on because, among other things, the magic number triggering eligibility for compassionate release in the BoP guidelines was lately—and rather suddenly—changed from 12 months life-expectancy to 18 months.

Stewart’s prognosis places her well within the newly-revised range. Hence, her renewed request. Yet, as was noted at the outset, the clock is ticking—as it has been for the past five months—and there’s no more indication that director Samuels is prepared to approve Stewart’s release than there ever was. The situation underscores an unstated but nonetheless uniform and longstanding policy of U.S. officials—and not only those in the BoP—to make “deterrent examples” of political prisoners, a posture that translates in part into an extreme reluctance to grant them early release under any circumstances, no matter how dire.

In this connection, the concept of “compassion” is even more alien to Those In Charge than it’s been with respect to the general prison population, a reality eloquently witnessed in the recent example of Marilyn Buck, diagnosed with terminal uterine cancer in November 2009, but not granted release from Carswell until July 15, 2010, with barely enough time to make it home to Brooklyn before dying on August 3. Such grotesquely vindictive official behavior was plainly grounded in the fact that Buck, who was 62 when she died, and who had already spent 33 years in prison—including a lengthy stint in the BoP’s now-defunct underground control unit for women at Lexington, Kentucky, during the late-80s—as the result of her engagement in explicitly political activities, consistently refused to recant her core values and beliefs.

There is no mistaking the message: A tremendous price can and will be extracted by the BoP and its counterparts from prisoners, especially political prisoners, deemed “guilty” of maintaining their personal integrity/fundamental human dignity behind the walls. It’s unquestionable that Lynne Stewart fits the description perfectly and it’s therefore impossible to avoid the conclusion that her ongoing incarceration as her life ebbs away constitutes a politically-motivated form of cruel and unusual punishment, in essence a crime against humanity. It must be understood as such, responded to accordingly, and the same principle applied in the cases of a number of other “politicals” held in U.S. prisons after decades of time served and despite their advanced ages and steadily-deteriorating health/increasing degrees of infirmity.

Here, Leonard Peltier, Ruchelle Magee, Chip Fitzgerald, Hugo Pinell, Mondo we Langa, Ed Poindexter, Jalil Muntaqim, Herman Bell, Sundiata Acoli, Sekou Odinga, Marshall Eddie Conway, Seth Hayes, Albert Woodfox, Herman Wallace, Maroon Shoats, Mutulu Shakur, the Move 9, Oscar López Rivera, Bill Dunne, Veronza Bowers, Jaan Laaman, Tom Manning, Judy Clark, and David Gilbert all spring readily mind, and that’s to list but a few. In any system of justice remotely worthy of the name, each of these prisoners, and many others, would long since have been released on compassionate or other grounds. Witness the fact that even in Germany—a country seldom cited as an exemplar of humanitarianism—every surviving member of the Red Army Faction has been returned to the street.

That the U.S. adamantly refuses to follow suit speaks volumes.

Punctuating this grim reality, is another: While the BoP and collaborating agencies have effectively nullified the very idea of compassionate release in “the land of the free,” stonewalling its application in cases such as Stewart’s—where even the trial judge took time during her original sentencing to commend her lifetime of unstinting public service—those same entities have been simultaneously employing the relevant criteria, albeit under or as supplements to other rubrics, to release mafiosi and other such bona fide miscreants. A recent example is that of Ray Ruggiero, a capo in New York’s Genovese crime family, who was a heavy in the organization’s south Florida operations from 1994 until he pled guilty in 2007 to playing the key role in a RICO conspiracy involving extortion, loan sharking, money laundering, and substantial violence.

In February 2012, Miami federal district judge James Cohn, responding to arguments from the DoJ and a BoP petition, ordered Ruggiero’s immediate release after he’d served less than half his already much-reduced sentence. The DoJ/BoP position was not only that the mobster had “earned” an early exit by “cooperating with the government” and providing unspecified but “substantial” assistance to the DoJ in pursuing other mafia cases, but also that he was deserving because he was by then 78 years old, suffered from a heart condition and diabetes, and had already been confined for several years in prisons a considerable distance from home, making it difficult for his family to visit him.

A still more recent example is that of Joe Massino, former boss of the Bonanno crime family, who faced the death penalty on instruction of then-attorney general John Ashcroft and was in any event sentenced to a double-life term in federal prison upon being convicted of heading up a vast and routinely lethal RICO conspiracy in 2004. In July 2013, New York federal district judge Nicholas Garaufis ordered Massino’s release after he’d served a little over 10 years. Like Cohn, Garaufis was responding to arguments from the DoJ, accompanied by a BoP petition, to the effect that Massino’s testimony against other mafia notables—unprecedented for a mobster of his high station—had been a major breakthrough in the DoJ’s ostensible “war on organized crime,” and that he’d thus earned a get out of jail card. However, as in the Ruggiero case, it was also argued that compassion was warranted since the 70-year-old Massino was suffering “serious health problems” that would “almost certainly limit his longevity significantly.”

Not uncommonly, such things never even reach the point of requiring BoP participation. A classic example is that of Greg Scarpa, a truly vicious thug prominent in the Columbo crime family and nicknamed “The Grim Reaper” by his gangland cohorts. After entering a guilty plea in 1986 to a charge of largescale credit card fraud (i.e., racketeering), an offense carrying a penalty of seven years plus a quarter-million dollar fine, he was sentenced by New York federal district judge I. Leo Glasser to a mere five years probation plus $10,000, walking out of court a free man. Scarpa was spared imprisonment at the request of the FBI, another subpart of the DoJ, citing the fact that Scarpa had been diagnosed with AIDS and, so claimed the bureau, had only a few months to live. In light of the fact that Scarpa was at the time secretly classified as a “top echelon mob informant,” there’s a distinct possibility that the FBI knowingly misrepresented his condition. Be that as it may, he not only lived for another six years, but remained homicidally active during most of them.

Before pleading guilty again in May 1993, this time to three murders and conspiracy to commit several others—the evidence indicates that his career body count was at least 26, and may well have exceeded fifty—Scarpa conducted the “Third Columbo War,” through which he sought to take control of the family. Setting aside the question of whether his FBI handler, senior agent Lin DeVecchio, was directly complicit in several of Scarpa’s murders—à la the notorious case of John Connolly, mob boss Whitey Bulger’s handler in Boston—it was by then clear that not only had its “star informant” never provided the FBI with anything resembling reliable “intelligence,” he may well have been playing the bureau to facilitate false convictions against gangland adversaries (in at least two instances, there is evidence that bogus information provided by Scarpa led to guilty verdicts against his opponents for murders that he himself committed).

Even then, the FBI and DoJ conducted themselves in a manner best described as serving Scarpa’s interests, leaving uncontested a renewal of his claim that since his AIDS infection left him little time to live putting him behind bars would be inhumane. Although Scarpa faced an all but automatic life sentence, New York federal district judge John B. Weinstein responded by reducing it to 10 years—making The Grim Reaper eligible for parole in only 34 months—an astonishingly lenient penalty, also unchallenged by the DoJ. It’s hardly a stretch to adduce that a principle akin to compassionate release was once again involved, a priori, in the relatively gentle treatment accorded Scarpa. Unfortunately for him, however, the prognosis he recited was in this instance accurate; Scarpa died of AIDS-related maladies in the federal medical center at Rochester, Minnesota, in June 1994, having served less than 14 months.
The courts’ and the DoJ’s comportment in the Scarpa cases may be usefully compared to that of both the department and the judge in Stewart’s. First off, following her February 2005 conviction, sentencing had to be delayed for nearly eighteen months while Stewart was undergoing treatment for breast cancer, so all parties were fully aware of her illness. In the interim, she requested that, in view of her age, history of cancer and more general health problems, the judge exercise his discretion in sentencing, afforded him by the U.S. supreme court in U.S. v. Booker (2005), to simply forego prison time in favor of a noncustodial penalty. For its part, the DoJ, in stark contrast to its stance regarding professional hoodlum cum serial killer Greg Scarpa in 1986, and again in 2003, argued that she should be sentenced to serve a term of 30 years, not only “to punish [her] for her actions” in defending a politically unpopular client, but “as a deterrent to other lawyers” inclined to follow her defiantly principled example.

Judge Koettl plainly saw through the DoJ’s various contentions regarding Stewart’s character and the magnitude of her “offenses.” Indeed, as was mentioned earlier, while pronouncing sentence on October 16, 2006, he made a point of noting her sustained “public service, not only to her clients, but to the nation.” Nonetheless, unlike Judge Glasser in the 1986 Scarpa case, Koettl was unwilling to accept Stewart’s medical condition—age was not a factor in Scarpa’s sentencing, since he was only 58 at the time—as a basis upon which to order probation rather than imprisonment. Instead, despite the fact that she’d already been disbarred and thus, unlike Scarpa, could hardly have been expected to resume the activities underlying her conviction, Koettl sentenced her to a term of 28 months.
Were that not bad enough, when Stewart appealed her conviction to the. 2nd circuit court, a three-judge panel including John M. Walker, Jr., ultra-right-wing cousin of George W. Bush, was selected to rule on it. The result was that in November 2009, Stewart’s conviction was upheld on all counts, but—citing, among other things, the bravado embodied in statements she’d made outside the courthouse after her initial sentencing—the panel sent the case back to Koettl with instructions that he immediately cancel her bail and recalculate her sentence. While he could have simply reiterated his original conclusion in the matter, or even responded by changing it for the better—both options were within his discretion, although exercising it would undoubtedly been a career-ender—Koettl capitulated and, on July 15, 2010, more than quadrupled Stewart’s original term of confinement, ordering that she serve “120 months.”
In other words, although their health issues were arguably comparable, because she was insufficiently contrite in her public utterances, Koettl increased Stewart’s sentence to precisely the same level—10 years—that Judge Weinstein had in 2003 compassionately reduced confessed multiple murderer Greg Scarpa’s. And, while it argued vociferously throughout the process that Stewart’s punishment should be far harsher than that ultimately allotted by Koettl, the DoJ took no such position with regard to the “love tap” dispensed to Scarpa by Weinstein.

Under such circumstances, one hardly knows what to say, other than that maybe we’ve been taking the wrong track. All things considered, especially the effects of Stewart’s rapidly-advancing cancer, perhaps we should shift our emphasis from supporting her request for compassionate release to demanding that Koettl grant her an early out as a reward for losing a substantial amount of weight. After all, it worked for mob enforcer Richard Bondi, who was granted a sentence reduction on that basis by New York federal district judge Fred Block in 2007. Admittedly, my attempt at humor in this connection is both feeble and deeply bitter, yet one learns through long and equally bitter experience that, in struggles such as ours, there is far more strength and clarity to be gained from sarcasm than from tears (no matter how necessary they may be from time to time), and this brings us to the bottom line of all that has been said herein.

Compassionate release, even in the terms set forth in the relevant federal statutes, is not something that must be “earned” by way of a prisoner’s becoming a snitch, otherwise providing “services” to the government, or demonstrably abandoning his or her sense of self-respect. It’s an elemental human entitlement which the government has no moral, ethical, or legal prerogative to arbitrarily deny and for which it has no right to exact a price. As things stand, the U.S. government has and continues to pursue a diametrically opposing policy wherein mafiosi and other such tangible public menaces are blatantly privileged over those adjudged guilty of holding and acting upon dissident political views. Transforming this ugly reality will require not only that we muster the strength to carry the struggle forward, but to clearly understand and explain the true nature of what we confront, thereby drawing others into the fray. Hopefully, the examples and contextualization offered above will be of utility in this regard.

Postscript: Word has just arrived that a federal district judge in Baton Rouge has finally ordered the immediate release of Herman Wallace, one of the political prisoners mentioned in this article, from the Louisiana state prison at Angola. Wallace, a former Black Panther and one of the Angola 3, is in the final phase of liver cancer and, like Marilyn Buck when she was cut loose, is expected to live no more than a few days. Tellingly, Judge Brian Jackson did not order the release on the basis of compassion. Rather, he ruled that Wallace’s constitutional rights were violated by the state during his 1974 prosecution for involvement in the killing of a guard, and overturned the resulting verdict. Presumably, given the flagrantly prejudicial process to which Wallace was subjected, this conclusion could have been reached by the federal courts at any point over the past four decades. Instead, he was left to rot in Angola, spending a staggering 41 years in solitary confinement, until he was quite literally at death’s door (and Louisiana is officially protesting his release even now). Such is the current quality of justice and mercy in the United States.

Editor’s Note: See our tribute to Herman Wallace later in the issue.

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