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TWO COMPASSIONATE RELEASE DECISIONS SLAM BOP MEDICAL CARE

Two district courts, separated by some 3,400 miles, granted compassionate release to prisoners in the last two weeks based in substantial part on inadequate Bureau of Prisons medical care.

In Greensboro, North Carolina, a federal judge reduced Ronnie Burr’s 240-month drug distribution conspiracy sentence to time served. Ronnie filed for compassionate release in 2020 but was denied on § 3553(a) sentencing factors. When he sought reconsideration, the district court decided he “was not receiving appropriate medical care for all his medical issues, that he lived through “dire conditions… at Fort Dix during the pandemic caused in part by BOP mismanagement, and that these facts constituted extraordinary and compelling reason to warrant a sentence reduction.” Including “the delays in medical treatment, including a recommended endoscopy for his gastritis, and the ‘exceptionally difficult’ conditions of confinement during the pandemic,” the judge cut his sentence by nine months.

In May 2022, Ronnie filed again, complaining that BOP medical treatment had not improved. Ronnie still had not gotten the endoscopy that had been recommended two years before, but the government argued the endoscopy had “not been considered urgent by treating health professionals.” The court rejected that as “conjecture,” relying on Ronnie’s expert’s evidence that a gastric ulcer can be cancerous, an endoscopy is needed to determine if Mr. Burr has a gastric ulcer, Mr. Burr’s healthcare providers have repeatedly ordered an endoscopy, the BOP repeatedly failed to follow through with arranging one, and failure to timely diagnose a cancerous gastric ulcer can be fatal. When the BOP finally scheduled the test, they failed to arrange appropriate staffing to take Mr. Burr off-site for the test, and then did not reschedule the test to occur for two more months. Beyond explaining that “staffing issues” prompted the canceling of the finally-scheduled endoscopy, the government has offered no evidence of why it took them years to schedule the endoscopy or why it did not arrange for adequate staffing once the test was finally scheduled.”

The Court reduced Ronnie’s remaining 8½ years to time served, observing that “[w]hile it is a positive that the procedure is finally scheduled for later this year, that is worth little weight, since the BOP already canceled Mr. Burr’s endoscopy once and may do so again.”

The Court said, “The uncontradicted evidence shows that the BOP has failed to obtain a medically-ordered test for over two years, that the failure could lead to a failure to timely diagnose and treat cancer, and that the failure is not an aberration, given the long delay in scheduling a consultation with a pulmonologist and the failure to schedule a follow-up visit after his surgery… Continued incarceration in the face of ongoing constitutionally deficient medical care is unjust punishment, not just punishment.”

Meanwhile, up north in Alaska, Tom Ranes – serving a 360-month sentence for a drug conspiracy (with 8½ years to go) – also had sought a compassionate release in 2020 that the court had denied for § 3553(a) factors. He filed again last summer.

Tom was a healthy man when he began his sentence, but a fall from an upper bunk injured his tailbone, and everything spiraled downward from there. Now, the Court found, he “has significant digestive tract issues and diseases of the anus and rectum, for which he has received over twenty surgeries during his incarceration. He has had multiple sections of his large intestine removed due to complications from medical treatment he received while in BOP custody, followed by multiple procedures to implant and then repair medical mesh for an incisional hernia. After using a colostomy bag from 2009 through 2011, Mr. Ranes had multiple surgeries to correct subsequent complications. He… has frequent UTIs,~ and endures chronic abdominal pain and abnormalities… In 2019, Mr. Ranes suffered a herniated disc and a detached disc in his spine… Nearly three years later, he has yet to receive the necessary surgery for his injury.”

The Government denied that Tom’s condition presented “extraordinary and compelling circumstances” and argued release was inappropriate under the § 3553(a) sentencing factors. The Probation Office agreed.

The Court did not. It noted that “in the two years since the Court’s previous Order… Mr. Ranes’s health continues to deteriorate, and, troublingly, BOP has yet to provide appropriate medical treatment — even after this Court warned that he has received ‘alarmingly inadequate medical care’ and has ‘yet to receive necessary surgery.’”

The Court said that “in isolation, Mr. Ranes’s loss of a vital bodily function and diminished ability to care for himself while at a correctional facility could constitute extraordinary and compelling circumstances. However, it is the confluence of these conditions with the COVID-19 pandemic that undoubtedly warrant release.” Tom’s “medical condition, his inability to receive appropriate medical treatment and supplies while in BOP custody, and his increased risk of complications from COVID-19 infection present extraordinary and compelling circumstances that justify release.”

Tom’s sentence was reduced to time served with expanded supervised release, two years of which will be served on home confinement.

United States v. Burr, Case No 1:15-cr-362, 2022 U.S. Dist. LEXIS 216371 (M.D.N.C., Dec. 1, 2022)

Order Granting Renewed Motion for Compassionate Release, United States v. Ranes, Case No 3:06-cr-00041 (ECF 1165) (D.Alaska, Nov. 22, 2022)

– Thomas L. Root