The Federal Bureau of Prisons has decided to deny “compassionate release” to Lynne F. Stewart, a polarizing defense attorney who represented reviled clients like mafia hitman Salvatore Gravano and terrorist Sheik Omar Abdel Rahman.*1 Ms. Stewart was sentenced to 10 years in federal prison in 2010 after the United States Court of Appeals for the Second Circuit ruled that her original term of 28 months was too lenient (Ms. Stewart had said in an interview that she could do the 28 months “standing on her head,” and the government then appealed). Her sentence was for smuggling secret messages to Sheik Rahman’s radical followers in Egypt. That was then, this is now.

Now, Ms. Stewart is a 73-year-old federal prisoner, incarcerated at Federal Medical Center Carswell, and dying of cancer. In July 2012, FMC Carswell medical staff located a mass in her left lung, which was eventually determined to be cancer, a recurrence of a successful battle against the disease in 2005.*2 Since then, cancer has spread to her lungs, lymph system, and bones. The metastatic cancer is spreading and is undisputedly killing her, even if the Federal Bureau of Prisons disputes how quickly she will die.

According to the New York Times, “The release of a dying [federal] inmate must follow a request by the Bureau that seeks a compassionate release from a judge.” The judge must then grant the release. This authority is not granted to the U.S. District Court without a referral from the Federal Bureau of Prisons. The New York Times continues, “In weighing the issue, the Bureau considers the inmate’s condition and whether the inmate could pose a threat outside prison[.]” New regulations now expand the guidelines for compassionate release to those with a “terminal, incurable disease [and an inmate] whose life expectancy is 18 months or less.” This is an expansion from the previous 12-month range. The Federal Bureau of Prisons must find “extraordinary and compelling” circumstances to grant the compassionate release request.

In April, Ms. Stewart filed her compassionate release request with the prison administration at FMC Carswell.*3 In May the compassionate release request was recommended for approval by the FMC Carswell warden, the first step in the compassionate release process. In June, the request was subsequently denied by the Federal Bureau of Prisons’ Central Office, on the basis that her body was responding to the cancer treatments and the Bureau’s estimation that she would not die within 18 months.

Upon the Federal Bureau of Prisons’ denial of compassionate release, Ms. Stewart’s attorney, Jill R. Shellow, petitioned the sentencing judge, John G. Koeltl, United States District Judge for the Southern District of New York, for review and to vacate her sentence under Eighth Amendment claims. In court filings, Attorney Shellow stated that Ms. Stewart now must utilize a walker to move, and is constantly shackled and handcuffed (with a belly chain employed) for her cancer treatments at an outside cancer center. She is often isolated to minimize her risk of infection. Attorney Shellow argued that this combination of factors has created a “cruel and unusual and excessive” punishment for Ms. Stewart. After all, she was not sentenced to die in, according to Ms. Stewart, “a strange and loveless place[.]”

Sadly, for Ms. Stewart, and her supporters — who packed Judge Koeltl’s courtroom — the request for release and review of the compassionate release request was denied. Judge Koeltl cited a lack of authority to grant such a release without an initial motion made by the Federal Bureau of Prisons. In his decision he wrote, “The court would give prompt and sympathetic consideration to any motion for compassionate release filed by the B.O.P., but it is for the B.O.P. to make that motion in the first instance.” Judge Koeltl tempered this by also writing, “There is no right that requires the release from prison of terminally ill inmates.”

Andrew C. McCarthy, the former federal prosecutor who prosecuted the case against Sheik Rahman in which Ms. Stewart engaged in the conduct leading to her indictment and conviction, commented, “We permit harsh sentences because people disposed to commit atrocious crimes would otherwise commit many more of them, killing and imperiling innocent people.” He also asserted that some people, due to their heinous conduct, should die in prison, even if not sentenced to death. Even with his harsh sentiments concerning convicts, he too offered a compassionate comment, stating, “As a private citizen who was very fond of Lynne when we dealt with each other, I prefer to keep my thoughts to myself and my prayers for Lynne and her family.”

Following Judge Koeltl’s ruling, Ms. Stewart vowed to continue the fight and to again petition the Federal Bureau of Prisons for release. Attorney Shellow affirmed, “While we are disappointed, this is hardly the end of this fight. Lynne is going to continue to actively pursue a compassionate release through the B.O.P., and we expect to be back in court, and hope it will be soon rather than later.”

Considering that the Federal Bureau of Prisons granted 40 compassionate release requests in 2012, has been under substantial scrutiny from the Justice Department’s Office of the Inspector General for failures within the compassionate release program, and has a high-profile compassionate release case with Ms. Stewart, one can only hope that Ms. Stewart’s request will be granted. If not, the Federal Bureau of Prisons will once again claim another life when only a finite number of years were sentenced.

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*1-Sheik Omar Abdel Rahman is the blind, radical cleric who was convicted in 1995 of conspiring to blow up the United Nations and other New York City landmarks.

*2-In 2005, Ms. Stewart battled breast cancer into remission by participating in radiation therapy. Afterward, she had to take hormones for 5 years to build her body back up.

*3-As a part of her compassionate release request, Ms. Stewart was seeking to be allowed to live with her son and his wife in Brooklyn. Here is where she desired, and continues to desire, to spend her final days.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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