Mimesis Law
21 October 2017

Thoughts on Compassionate Release and the Week That Was

March 1, 2017 (Fault Lines) — I don’t particularly mind sending somebody to prison knowing that he or she may die within the walls. The following image captures my lizard brain as I pronounce such a sentence.

Credit: Dirk Hughes

I like to believe that my hard shell is a matter of realism and not cruelty or indifference. But, of course, only the gods, should there be such beings, have the capacity to know my soul. In general, I am inclined to leave it that way.

But this last week was an eye-opener even for me. Three sick prisoners died while in the custody of the Nebraska Department of Corrections. It made the papers. See Nichole Manna, Three NDCS inmates died this week, Lincoln Journal Star (updated Feb 24, 2017).[1]

While the cause of the three men’s deaths has not been determined, all three were being treated for long-term medical conditions. As is the case whenever an inmate dies in custody, Nebraska law requires that a grand jury investigate. I really like that law. Nevertheless, there is no reason to believe that anything untoward happened to these men.

Harold Nokes (pictured below) was 88 when he died. He was serving two life sentences at the Nebraska State Penitentiary for killing Edwin and Wilma Hoyt in 1973 in Red Willow County. He admitted to killing the Hoyts and dumping their body parts into Harry Strunk Lake near Cambridge.

The fascinating and titillating story of Nokes’ ménage à trois with the Hoyts’ daughter, the homicide of her parents and the dismemberment of the victims was the subject of a great book by a dear friend, a highly regarded practicing lawyer, a former president of the Nebraska Bar Association, a member of the ABA’s Standing Committee on the Federal Judiciary and a true scholar with a Ph.D. in legal history. See James W. Hewitt, In Cold Storage, Sex and Murder on the Plains, University of Nebraska Press (2015).

Also on Wednesday last, Gary Pope, 68, died at the Diagnostic and Evaluation Center in Lincoln. Pope was serving a life sentence for first-degree murder from Saunders County and had been in prison since 1981. He was convicted in the 1979 death of Richard Don Rogers. In 2006, Pope asked the state Board of Pardons to commute his sentence to a definite number of years. At the time, his daughter and a nephew asked the board to grant the request because they didn’t want to see him die in prison. Pope’s photo appears below.

On Monday, February 20, 2017, 57-year-old Wayne Stark died in the skilled nursing area of the penitentiary just before 2 a.m. He was serving three to six years for fourth-offense aggravated DUI from Douglas County. Stark’s sentence began March 30, and he had a projected release date of February, 2019. His photo appears below.

These deaths got me thinking about “compassionate release” from federal prison. The Bureau of Prisons has compassionate release authority within the statutory language “extraordinary and compelling reasons.” See 18 U.S.C. § 3582(c) (1) (A) (i). (For inmates whose offenses occurred before November 1, 1987, 18 U.S.C. § 4205(g) remains the controlling law, even though it was repealed as part of the restructuring of federal sentencing law under the Sentencing Reform Act.)

The Sentencing Commission has now substantially amplified the scope of “compassionate release” instructions for judges, once the Bureau of Prison has filed the necessary predicate motion. See Application Note 1(A) and (B), U.S.S.G. §1B1.13 at page 52 (Guidelines Manual, November 1, 2016). Indeed, the Sentencing Commission has virtually begged the Bureau of Prisons to utilize the authority given to the BOP more frequently. Id. at Application Note 4 and page 53.

I currently have one such inmate under my supervision as I granted the BOP’s motion for a time-served sentence with continued supervised release. The offender is likely to die this year while living with his wonderful but aged mother. He is the beneficiary of the concerted effort of a tough but caring senior United States Probation Officer. So far, my “compassionate release” case is working out, although there have been big bumps along the road.

It is worth striking a cautionary note, however. “Compassionate release” programs must be approached very carefully. Otherwise they could easily turn into the correctional equivalent of “patient dumping” in the world of hospitals. As I see it, there are at least three prerequisites to compassionate release:

(1) the release must be carefully planned prior to the prison gates swinging open;

(2) adequate funding for the prisoner’s care must be in place before release; and

(3) expert and attentive probation supervision must be made available after release and on a constant basis.

I now conclude by returning to the three Nebraska prisoners who died last week. Messrs. Nokes, Pope and Stark, you and each of you have my posthumous thanks for causing me to think more deeply about compassionate release. At least for me, your deaths had meaning.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[1] I don’t recall reading Ms. Manna’s work before. But I will venture a guess that she will go far as a writer.

 

3 Comments on this post.

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  • Chris Seaton
    1 March 2017 at 11:16 am - Reply

    Judge,

    Thank you for your insight. I understand your ability to comment on matters is very limited, but it’s nice to see someone on the bench thinking clearly about issues like “compassionate release.”

    Every time you come to Fault Lines, I come away a little smarter. I am grateful for that.

    • Richard G. Kopf
      1 March 2017 at 11:50 am - Reply

      Chris,

      Coming from you, a writer and a lawyer for whom I have great respect, I humbled by your overly nice comment. All the best.

      RGK

  • David Meyer Lindenberg
    4 March 2017 at 1:32 pm - Reply

    Your Honor,

    I just finished Mr. Hewitt’s book. A chilling story, extremely well told. He has a new European admirer.

    All the best,
    David