Wednesday, January 9, 2013

Jailers Should Not be the Judge, Too

That's the title of this USAToday column by FAMM Vice President and General Counsel Mary Price, co-authored with Jamie Fellner of Human Rights Watch.  It takes the federal Bureau of Prisons to task for its failure to use its "compassionate release" power:
Congress recognized that situations arise that make continued incarceration senseless and inhumane. Old age could so whittle a prisoner's body that he cannot dress, eat or bathe by himself. The accidental death of a prisoner's husband might condemn young children to foster care.
Unfortunately, the bureau is reluctant to make motions for "compassionate release." We do not know how many prisoners seek compassionate release each year because the bureau does not keep count. But in 2011, for example, when there were about 218,000 federal prisoners, the bureau said yes only 30 times. Since 1992, it has made motions about two dozen times a year.
Why so few? In part, it's because the bureau will not make a motion unless the prisoner has fewer than 12 months to live or is utterly and irrevocably incapacitated. Yet even then, it may say no. ...

The bureau denies compassionate release for many prisoners because, in theory, they are still capable of re-offending regardless of whether it is likely. It also considers whether a prisoner has, in the judgment of wardens and more senior officials, been punished enough, whether release might depreciate the seriousness of the crime or whether the crime was just too heinous.
But Congress left those judgments to courts.
One of the beauties of our democracy is its division of labor.  Courts, the executive branch (which includes our federal prisons), and Congress not only ease the burden of governing by sharing the work, but also keep each other in line by serving as a check on each other's power.  The prisons are in the best position to say whether a prisoner is sick, dying, or otherwise in need of an early compassionate release; courts heard all the facts and evidence of the case and know better "the seriousness of the crime or whether the crime was just too heinous."

To each branch its own power.