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Aging, Sick and Incarcerated: The Need for Compassionate Release

Compassionate release as a policy is rarely implemented: On average, only 24 people are granted compassionate release each year.

(Image: Jared Rodriguez / Truthout)

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Mary Ziman already had debilitating fibromyalgia and, unable to work, was on permanent disability. Then she was arrested and sentenced to 27 years in federal prison for conspiracy to distribute marijuana, methamphetamine and cocaine, charges she says stemmed from fabrications by a woman with mental illness caught with drugs and a gun. That was 17 years ago.

2016 0616rr l 1Mary Ziman. (Photo: Courtesy of CAN-Do Clemency)Now 67 years old, Ziman has three cancerous spots on her left lung, requires the use of three inhalers and has only 51 percent lung capacity. She is also blind in one eye and has a cataract in the other. In March 2016, after repeatedly complaining to medical staff at the federal prison in Victorville, California, she was hospitalized for a kidney infection stemming from an untreated urinary tract infection. She spent 10 days in the hospital where tests found that she suffered from anemia, arthritis, a hernia and problematic potassium levels affecting her heart. Additionally, Ziman now requires hip and knee surgery.

In April, not long after her release from the hospital, Ziman suffered another devastating blow. The Office of the Pardon Attorney denied her request for clemency, or a commutation lessening the length of her sentence and allowing her to return home early. (Clemency can also take the form of a pardon, which expunges the conviction altogether.) There is no appeal for such a denial. Instead, Ziman must wait an entire year before she can submit another request for clemency.

However, Ziman does have some hope for another route forward: She has filed a petition for compassionate release, which, if granted, would allow her to return home to her nine children, 28 grandchildren and two great-grandchildren.

Compassionate release is a policy that allows for the early release of incarcerated people who are aging or terminally ill so that they can die at home surrounded by loved ones. The policy is used very sparingly: In 2013, the Office of the Inspector General found that, on average, only 24 people are granted compassionate release each year.

Lynne Stewart waited a year and a half to receive approval for surgery for a tipped bladder. By the time she got to the operating room, she recalled that the surgeon said that hers was the worst condition he had ever seen.

“We found that the [Bureau of Prisons’ (BOP)] compassionate release program had been poorly managed and implemented inconsistently,” stated Michael E. Horowitz of the Office of the Inspector General in his testimony before the US Sentencing Commission in February 2016. The poor management and inconsistent implementation has resulted in those who are eligible not being aware of the program and those who are terminally ill dying before their requests are considered. “Specifically, we found that the BOP did not have clear standards as to when compassionate release is warranted and whether particular medical or nonmedical circumstances qualify for consideration. BOP staff therefore had varied and inconsistent understandings of the circumstances that warrant consideration for compassionate release,” Horowitz said.

In August 2013, the Bureau of Prisons expanded the criteria for compassionate release, reducing the eligibility age from 70 to 65 years old and the time that must have been served from 30 years to either 10 years or 75 percent of the applicant’s sentence (whichever is less). The proposed change still leaves the initial filing in the hands of the director of the BOP. A person can write a request to the director for consideration, but cannot initiate the process on their own.

Yet the expanded criteria have not resulted in a significant increase in releases. In its 2015 report, the Office of the Inspector General noted, “We found that only two inmates had been released under this new provision.” That year, aging people made up 26 percent of federal prisoners at minimum-security prisons, 23 percent of low-security prisons and 33 percent in medical prisons.

Long Waits and Little Action

Ziman is far from the only person who has experienced the frustratingly slow process of receiving medical care in federal prison. As reported earlier, even higher-profile prisoners like Lynne Stewart and Phyllis “Grandma” Hardy have experienced harmful delays in medical treatment. Stewart, an acclaimed attorney who entered prison in 2009, waited a year and a half to receive approval for surgery for a tipped bladder. By the time she got to the operating room, she recalled that the surgeon said that hers was the worst condition he had ever seen. During her 23-and-a-half years in prison, Hardy, who entered prison in her mid-40s, saw her health and mobility decline. When she was told that she had been granted compassionate release, the 71 year old had a heart attack and, instead of making preparations to leave prison, had to be rushed to the hospital. She was eventually released and now lives with her family in North Carolina.

Linda Byrnes is still in prison. She has spent 20 years in federal prison for conspiracy to distribute marijuana. In Byrnes’ home state of Michigan, marijuana for medical purposes has been decriminalized and is now regulated. Patients can cultivate their own medical marijuana or designate a caregiver to do so. This year, advocates are also undertaking efforts to fully legalize marijuana. But none of that will make a difference for Byrnes, who turns 70 this year.

Linda Byrnes. (Photo: Courtesy of CAN-Do Clemency)Linda Byrnes. (Photo: Courtesy of CAN-Do Clemency)In January 2015, Byrnes noticed a white spot on her tongue. She made a sick call appointment and, the following month, showed it to the prison dentist. “He didn’t seem very interested,” Byrnes told Truthout. Byrnes, who had had skin cancer before her arrest, persisted, repeatedly telling prison staff that the spot “has gotten larger, bleeding, swollen” and that she suffered “severe pain at all times.”

“It got so bad that she couldn’t eat anything,” her older sister Sonja Leiter told Truthout.

In February 2016, one year after she had started requesting medical care, Byrnes was taken to a hospital in Charleston, West Virginia, for a biopsy. The biopsy found that she had ulcerated moderately differentiated squamous cell carcinoma (in other words, cancer on her tongue). The pathologist noted that the lesion had not been completely excised and that the invasive tumor was still present. Still, she was not scheduled for surgery to remove the tumor. Byrnes wrote that to prevent her tongue from touching her teeth and causing intense pain, she began wrapping her tongue with gauze.

On April 11, 2016, Byrnes was transferred to the federal medical prison in Carswell, Texas, a prison which other women have reported inadequate, and sometimes blatantly neglectful, care. On May 24, Byrnes was taken to the hospital where doctors removed a portion of her tongue to excise the cancerous cells. They also removed node glands from her neck. She spent several days recovering in the hospital before being returned to the prison.

Even at the best of times, prison protocol makes it difficult to obtain health care in a timely fashion. Inside prison one cannot visit the doctor at any time.

“I was pretty sick yesterday, but feeling much better today,” Byrnes wrote after she had returned to the prison. “I could not keep the water down yesterday, but I finally got control over my tongue and forming it to make it start working.” However, prison conditions make recovery more grueling. When she returned to Carswell, the air conditioning was broken. “So I got sick … couldn’t eat or breathe,” she wrote. Only after the prison’s doctor obtained a fan for her did she begin to feel better.

“They’re Never Going to Give Her the Treatment She Needs Inside”

Angie Jenkins, who received clemency from President Obama in December 2015, met Ziman when the older woman arrived at FCI Dublin more than a decade ago. “She’s always had medical problems,” Jenkins told Truthout. “But they’ve gotten worse while she’s been in prison.” Ziman refused to complain, but over the years Jenkins and other women learned to recognize when Ziman was in pain and pitched in to assist her.

“When she was [stuck] in her housing unit, there were women who checked on her and looked out for her,” Jenkins recalled. During the times that Ziman could only get around by wheelchair, women would push her wheelchair. When Ziman was well enough to walk with a cane, a group would walk with her to ensure that she reached her destination safely.

Even at the best of times, prison protocol makes it difficult to obtain health care in a timely fashion. Inside prison, Jenkins explained, one cannot visit the doctor at any time. Instead, a person must go to sick call, which is only available certain days. A person must arrive at sick call at 6 am, fill out a form and wait in line for an undetermined amount of time. “Some women have to wait all the way till afternoon,” Jenkins recalled. Instead of examining the patient, medical staff ask a few questions, then schedule a follow-up appointment, which may be days or weeks away. If medical staff is unable to see her that day, then a woman must return and go through the process again the next day.

“They’re never going to give her the treatment she needs inside,” Jenkins said. “She needs to get out and get treated.”

Compassion Extends to Families on the Outside

Most of Ziman’s family still lives in Dickinson, North Dakota, not far from the Fort Berthold Reservation where Ziman grew up with her mother and grandmother, who was the last full-blooded member of the Mandan tribe.

The federal prison camp in Victorville, California, is more than 1,400 miles away from Dickinson. But twice a year, Ziman’s son Corey makes the trek to see his mother. “Her eyes have slowly gotten worse,” he told Truthout. “When I’m sitting in the visiting room, I have to stand up or sit by the door or else she can’t see me.”

It’s not just the distance that worries him. It’s the inability to know what’s happening. “When you don’t hear from her, there’s always that worry that something’s happened,” he said. That worry is not unfounded: When his mother was hospitalized in March, he had no idea what had happened. “She hadn’t emailed in a few days, which was kind of odd,” he recalled. It wasn’t until another woman at the prison called him that he learned that his mother had been taken to the hospital.

“I was calling the prison 10 times a day,” Corey remembered. “I wouldn’t quit calling.” When prison officials did answer — and often they didn’t — they refused to tell him anything about his mother. “All they’d say was, ‘All I can say is that she’s housed here, but nothing else.'” It wasn’t until his mother was released from the hospital and sent back to the prison that she was able to call him.

Byrnes’ family too has been kept in the dark about her medical treatment. After not hearing from her sister for several days, Leiter called the prison and, after waiting on hold for more than 15 minutes, was told that she was not authorized to be given information.

Compassionate release would allow Byrnes to meet her terminally ill 7-year-old granddaughter, who has spinal muscular atrophy.

As part of Ziman’s application for compassionate release, she must have a release plan, including a place to live. Although her family lives in Dickinson, Ziman’s plan is to live in Bismarck, which offers better medical care. Corey arranged for his mother to live in a three-bedroom house with a friend, but the probation officer who conducted the home inspection didn’t approve the living situation. So Corey rented an apartment in Bismarck for his mother, no easy feat given her felony conviction. But renting the apartment doesn’t guarantee that Ziman will be granted compassionate release; it simply allows her application to continue in the process.

“When she’s in there, I picture people seeing her as a number, as livestock almost,” he said. “There’s no connection. But if she’s out here, if something’s not right, I know I’ll be able to get her to a doctor or get her help. It’s so easy to get lost as a number in a place like this.”

Byrnes too is hoping for compassionate release. Compassionate release will allow her to rejoin her family, whom she has not seen in years. Byrnes hasn’t seen her older sister Leiter since 1996, when she was still held at the local jail awaiting trial. There, the sisters’ visits were separated by glass. “I haven’t had a hug in 22 years,” said Leiter.

The one and only visit Byrnes had with her daughter Joslyn, who was 7 when Byrnes was arrested, was in 2005, shortly after Joslyn had graduated high school and gotten her driver’s license. “I’ve gone more than 20 years without my mother,” Joslyn reflected, adding that she doesn’t have many memories of her mother from her early childhood years. “She’s missed out on so much of my life. She’s never seen me graduate, never seen her grandkids. Neither one of us is ever going to get those years back.”

Byrnes and her family will never get those years back. But compassionate release would allow Byrnes to meet her terminally ill 7-year-old granddaughter, who has spinal muscular atrophy and is currently on a ventilator. “The doctors say she’s got another three years,” said Joslyn. “My mom has another three years of prison time.”

Meanwhile, in Congress…

Congress members have recently introduced federal bills that may enable the release of older people like Ziman and Byrnes from prison. In the House of Representatives in June 2015, Representatives Jim Sensenbrenner and Bobby Scott introduced the Safe, Accountable, Fair, Effective (SAFE) Justice Act, which expands the policy of compassionate release. If passed, the act would allow the person in prison to petition the courts themselves rather than wait for approval by the BOP.

As reported earlier, the Act also clarifies previously vague criteria of “extraordinary and compelling circumstances.” The Act allows a person to apply if they are at least age 60 or in declining health. A parent can also apply if their children’s caregiver is dying, incapacitated or unable to continue caring for the children.

Meanwhile, in the Senate, the Sentencing Reform & Corrections Act of 2015 would make permanent a pilot program for elderly people’s release. The criteria for the program is less stringent than compassionate release: It lowers the age from 65 to 60 and reduces the amount of time that must have already been served from 75 percent to two-thirds of the sentence. However, eligibility is limited to those convicted of a nonviolent offense and are terminally ill or in a prison nursing home.

But neither bill is far enough along in the legislative process to make an immediate difference. The SAFE Justice Act was referred to committee in June 2015; in October 2015, the Sentencing Reform and Corrections Act was reported out of committee, but no further actions have been taken.

Amy Povah, who founded the CAN-Do Foundation after receiving clemency from then-President Bill Clinton in 2000, has been advocating for Byrnes, Ziman and numerous other aging and sick people in prison. On April 28, 2016, she attended the White House Champions of Change for Expanding Fair Chance Opportunities and met Thomas Kane, the new director of the BOP. “I asked Mr. Kane why there had been no significant increase in compassionate releases, despite a promise from Attorney General Holder to expand the program,” she told Truthout. “He assured me he wanted to see good petitions for compassionate release on his desk.”

Byrnes and Ziman have filed requests for compassionate release. Now it is up to the BOP to decide whether they can rejoin their families soon.

Cory Ziman is hoping that Kane and other prison administrators will show his mother compassion. “Some people can’t hardly get across the street on their own and yet they’re incarcerated,” he reflected. “That’s where compassionate release should come in.”

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