There is a group of about 150 people in federal prison known as "old law" prisoners who committed crimes before November 1987 and still have little hope of release. Cornelia Li for NPR
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.
Compassionate release denied
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.
Congress could have a role in change
Senate Judiciary Committee Chairman Dick Durbin, D-Ill., is leading efforts to make "old law" prisoners eligible to petition a judge for compassionate release. Anna Moneymaker/Getty Images
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.
A pitch for a second chance
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.
Clark has always denied he took part in the heist of a mail truck in New Jersey and raped a young woman that day in 1985. Authorities lost or destroyed the biological evidence in his case, so it's no longer available for testing with more modern technology.
NPR reached out to the woman who says she was raped. She said Clark has served "the best years of his life in prison ... and if he has all these other health issues, he's not able to be hurting anybody else."
Price said legislation is likely the best hope for unwell "old law" prisoners to win release and pointed out that action in Congress and the courts has lagged at a time when lawmakers and the public are debating, and even dialing back, some of the tough-on-crime sentences of the 1980s and 1990s.
"We turn our backs on those sentences, but we don't give the people who are incarcerated under those sentences an opportunity to get back to court and get a second chance," she said.
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