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May 11, 2021

"Old law" federal prisoners provide new reminder that parole does not cure all ills

A few years ago I wrote an essay, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," which lamented the federal sentencing system's decision to abolish parole back in 1984.  Among other points, in this piece I suggested that "parole could have been, and perhaps should now become, a bulwark against the kind of impersonalized severity that has come to define much of the modern federal sentencing experience."  I realized while working on that piece that there was a bit of "grass is always greener" thinking driving my modern "ivory tower" affinity for part of a sentencing scheme that has long been beset with problems in practice. 

Today, the imperfect realities of parole is highlighted in this new NPR piece a helpful reader made sure I saw headlined "Forgetting And Forgotten: Older Prisoners Seek Release But Fall Through The Cracks."  I recommend the full piece, and here is how it starts and a few other passages:

Davon-Marie Grimmer has been struggling to get help for more than year for her cousin, Kent Clark. Sometimes, when he calls from prison, he asks to speak with relatives who are no longer alive. Sometimes, he forgets the name of his cell mate. "As far as I know, he hasn't received any medical attention for the dementia, and he's just so vulnerable in there," Grimmer said. "He's 66 years old. He can't take care of himself."

Clark is one of about 150 people in federal prison who time mostly forgot. This group of "old law" prisoners committed crimes before November 1987, when the law changed to remove the possibility of parole. But even with the grandfathered-in chance for parole — and despite a push to reduce prison populations — dozens of men in their 60s, 70s and 80s still have little hope of release.

When Congress tweaked the law three years ago to allow sick and elderly people behind bars to apply to a judge for compassionate release, that change didn't apply to the "old law" prisoners. They're easy to overlook.

"They are the oldest and most vulnerable cohort of people within the federal prison system today," said Chuck Weisselberg, a law professor at the University of California, Berkeley. "I mean, their only path for release is through the parole commission, an agency that's been dying for decades."

A bipartisan group of senators has introduced legislation that would give "old law" prisoners the chance to petition judges for release based on their age and poor health, but it's awaiting action in Congress....

As for Kent Clark, the U.S. Parole Commission reviewed his case last year.  According to written records, Clark's case manager told the commission that Clark is showing signs of dementia.  He pointed out that as a young man, Clark was a boxer who may have a history of head injuries.

But the parole examiner denied Clark's bid for release.  The examiner wrote that if Clark can't remember what he did, "how can the Commission be certain he has learned something from his mistakes and/or that he has developed the skills to avoid engaging in the same behavior?"

May 11, 2021 at 10:42 AM | Permalink


I handle old law parole revocation cases as part of my practice. The Parole Commission lacks accountability and transparency. They sometimes cannot get basic administrative functions right. In my view, all parole cases should be converted to supervised release cases and handled by courts with public dockets, public hearings and the chance to meet a lawyer before deciding you don't want or need one. And given my strong feelings about the supervised release system, that's saying something.

Posted by: defendergirl | May 11, 2021 3:06:36 PM

Way back when I was in law school and dinosaurs walked the earth, I participated in a clinic that handled parole hearings. (This was just after the sentencing guidelines took effect for the new offenders.) What quickly became apparent was that, even before the sentencing guidelines were enacted, many judges were using the parole guidelines to make sentencing decisions. Most of my clients fell into two categories with both based on the assumption that the parole date would be within the guidelines range.

In category one were the individuals who faced a judge who used the guidelines as a parole eligibility date. At that time, federal offenders had to serve one-third of their sentence before becoming parole eligible. These offenders had a sentence approximately three times the median of the guideline range. In short, these judges made sure that the Parole Commission could not go under the guideline range.

In category two were the individuals who faced a judge who used the guidelines as a mandatory release date. At that time, barring misconduct that would cost an inmate "good time" credit, most inmates reached their statutory release date after serving about two-thirds of their sentence. Thus, by imposing a sentence that was approximately 50% longer than their parole guideline range. In short, these judges made sure that the Parole Commission could not go over the guideline range.

In short, the more transparent the operations of parole were, the easier it was for judges to circumvent and limit the discretion of the Parole Commission. As bad as the current system might be, it is at least more straightforward about the relationship between the sentence and the time to be served.

Posted by: TMM | May 11, 2021 3:39:39 PM

What your Blog and the NPR piece gloss over is that "old Law" inmates can seek compassionate release under the pre-First Step Act BOP Regulations, but as a practical matter, it is almost never granted, and generally requires that the inmate be terminally ill, such as with cancer. Most Old Law inmates seeking Compassionate Release under the old Regulations died before their Petition could work its way thru the 4 levels of the BOP Bureaucracy: Warden, Regional Office, Director of the BOP, and review and recommendation by the BOP Medical Director. The minimum time for a petition to run the gauntlet of the BOP Bureaucracy is 6 months to 1 year, and terminally ill men usually die before that process can be completed. I first learned about this issue when I was an inmate at USP - 1, Coleman, Florida in 2006. I drafted (at a prison law library typewriter) a Petition for Compassionate Release for the longest serving inmate in the entire BOP. He was convicted of "kidnapping resulting in death" in June 1964. He was among a group that had been paid by a political opponent to kidnap a Cincinnati political candidate and hold him in communicado (in Northern Kentucky) during the last weeks before and election, to keep him from campaigning. The kidnappers were camping in the woods with their captive, but forgot to bring water to drink. Their captive suggested that he had a bottle of bourbon in the trunk of his car, so they should drink it in lieu of water. All got drunk, and a fight broke out. The captive died when his temple struck a rock on the ground when he was punched and knocked down in the fight. The Inmate was paroled for 13 days in 1994, after serving 30 years of his sentence. During those 13 days bank in the free world, he and his brother committed a series of bank robberies, and he was caught and returned to prison, to complete his life sentence, plus more time for the bank robberies. By the summer of 2006, he had served 42 years in Federal prison, and was reduced to an old man in his 80s, restricted to a wheel chair and chain smoking cigarettes. The prison doctor diagnosed him with terminal cancer, which had metasticized throughout his body. The Warden told him to get someone to help him prepare a Petition for Compassionate Release, and he would approve it and try to get him released from prison in time to die in the Free World, with his family. Other inmates brought him to me, because I was the only inmate with a law degree and practice experience. We met in the law library after dinner. I opened the Code of Federal Regulations to the appropriate sections, read them, and begin asking him questions to elicit the information I needed to prepare his Petition. I typed as he answered the questions. The Warden approved his Petition for Compassionate Release and forwarded it to the BOP Regional Office, where it was sitting unreviewed at the time the inmate died 6 weeks later. His cellmate returned from breakfast one morning to find him dead on the concrete floor of their cell. Work call and educational call were cancelled that morning and inmates were restricted to their living units while the local coroner was called in to review the scene and remove the body. The Coroner removed his body thru back hallways, out of inmate view, because some inmates with life sentences (in a BOP Penitentiaries, more than 2/3 of inmates have life sentences) get upset or violent when they see the body of another inmate who has passed inside the prison. Staff permitted the dead inmate's cellmate to sit outside at a table and cry away his grief. It was a poignant scene. This is what the remaining 150 Old Law inmates inside the BOP are facing. I pray that Congress will soon help them and make them eligible for the same kind of Compassionate Release as the New Law inmates receive.

Posted by: Jim Gormley | May 12, 2021 9:17:10 AM

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