Another reminder that "old law" federal prisoners are still awaiting compassionate equal treatment

A few months ago, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are not currently able to apply to a judge for compassionate release under the FIRST STEP Act. NPR returned to this story recently with this new piece headlined "Some Older Prisoners Aren't Eligible For Compassionate Release. Lawmakers Want Change." Here are excerpts:

COVID-19 has exacted a terrible toll inside America's prisons, spreading there at six times the rate as among the general population. The coronavirus pandemic motivated tens of thousands of incarcerated people to request early release on the grounds that their old age and health troubles made them especially vulnerable.

But the Federal Bureau of Prisons told lawmakers that of the nearly 31,000 prisoners to request compassionate release, the BOP approved just 36. Thanks to Congress, many had another option.  The First Step Act gave them the opportunity to go to court and persuade a judge they should win compassionate release.  More than 3,000 people have won their freedom that way during the pandemic.

But that law overlooks a small group of people in federal prison who were convicted of crimes before November 1987. One of them is Kent Clark.  NPR focused on Clark and other "old law" prisoners in a story this year.  Clark's cousin said Clark had lost his memory during his 31 years in prison.  After the story ran, public defender Rahul Sharma finally got Clark's medical records.

"They showed he has moderate to severe dementia, borderline blindness, tooth loss, severe depressive disorder, gout, cardiac arrhythmia and honestly just severe pain throughout his body," Sharma said.  He said Clark had been wandering into other people's prison cells and kept a list of things he needed to remember to do every day, like going to the bathroom and wearing a mask.  "It was found by the facility, by the prison, that he was a real danger to himself, given the severity of his dementia," Sharma said.

Clark has now been moved to a hospital in Florida where he's guarded by corrections officers, with one arm chained to the hospital bed and irons on his legs.  The warden has denied Clark's request for compassionate release.  Sharma said Clark, now 66, is deteriorating rapidly.

Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading efforts to make "old law" prisoners eligible to petition a judge for compassionate release.  A bill moving through Congress would change the law to make "old law" prisoners eligible to petition a judge for compassionate release.  The Senate Judiciary Committee advanced the measure by a bipartisan vote of 14-8 in May.

Democrats hope to bring it to the full Senate this fall, saying the bill would fix a glaring injustice.  Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading the charge.  "'Old-law' offenders are some of the most vulnerable and deserving of relief in federal prisons," Durbin said in a written statement.  "There is no logical or moral reason to exclude these offenders from the opportunity to petition the court for compassionate release."  Durbin called it a "modest, but necessary" reform and pointed out that the top Republican on the committee, Chuck Grassley of Iowa, is on board.

But some Republican senators, like Arkansas' Tom Cotton, are resisting.  "Most of this bill is just an expansion of criminal leniency policies for serious offenders under the guise of protecting inmates," Cotton said at a committee meeting this summer.

Mary Price, the general counsel of FAMM, a group that advocates for incarcerated people and their families, said that giving people in prison the option of petitioning a judge for release is not a "get-out-of-jail-free card."  Indeed, Price said, only about 20% of people in prison who sought compassionate release during the pandemic have been approved by judges.