Month: May 2019

When is a wheelchair-bound inmate with brain cancer not considered terminally ill? When a Justice Department lawyer is evaluating his medical record.

On Wednesday a judge ordered the release of federal inmate Steve Brittner, 55, under the new provisions of the FIRST STEP Act, a criminal justice bill passed late last year. The judge ordered the release over the objections of federal prosecutors, who argued that Brittner, who is suffering from a malignant brain tumor, does not meet the “extraordinary and compelling” reasons to qualify for what’s known as “compassionate release.”

Brittner’s case illustrates both the impact of the new law and the extraordinary hurdles terminally ill inmates and their families still face when trying to squeeze a small amount of mercy out of the federal government.

One provision of the FIRST STEP Act allows federal inmates to take their pleas to a judge if the federal Bureau of Prisons (BOP) rejects their petitions for compassionate release—a policy that is supposed to afford elderly and terminally ill inmates the opportunity to finish their lives among family and in relative peace.

As Reason reported last year, the petition process for compassionate release has long been arbitrary, inscrutable, and cruel. Justice Department records obtained last year by the criminal justice advocacy group FAMM show that since 2014, at least 81 federal inmates have died while waiting for the government to review their applications.

Brittner was sentenced in 2016 to 48 months in federal prison for distributing methamphetamines. In January 2018, he was diagnosed with brain cancer. By that November, an oncologist listed his prognosis as “poor” and discussed the possibility of ending treatment and beginning end-of-life hospice care. Brittner reported fatigue, weakness, and increasing memory loss. According to court filings, he is increasingly confined to a wheelchair.

Brittner filed two petitions for compassionate release to the BOP, and both times the BOP rejected them on the grounds that his life expectancy exceeded his release date.

A month later, Donald Trump signed the FIRST STEP Act into law. Brittner then filed a motion to a federal judge to review his case under the new provisions. But the Justice Department opposed his motion on several grounds, including that his brain cancer, while deadly, was not spreading, and the median life expectancy for his condition is two to three years.

“Although defendant’s medical records show that he was diagnosed with a malignant brain tumor, those records do not indicate that the tumor has metastasized,” the U.S. Attorney’s Office of Montana wrote in a response to Brittner’s motion. “Rather, the records show that the tumor has not recurred or progressed since surgery in March 2018.”

The U.S. government was arguing, in essence, that Brittner wasn’t dying fast enough to qualify for compassionate release.

U.S. District Judge Dana Christensen disagreed. She ruled that the Justice Department’s interpretation of the FIRST STEP Act was seriously flawed. A metastatic brain tumor was only one of several examples of conditions that qualify as terminal illnesses, not part of an exclusive list. (She also noted that the overall survival time for those with Brittner’s particular type of brain tumor is closer to one year.)

“It is clear from the nature of his disease and his worsening condition as documented above, that Brittner’s prognosis is grim, his disease is terminal, and the length of his life can be measured most likely in weeks, as opposed to months,” Christensen wrote in her order granting Brittner compassionate release.

“Finally, the Court is convinced that Brittner poses no safety risk to the community,” Christensen continued. “Brittner is in an advanced stage of cancer and is wheelchair bound.”

“This is a very telling case,” says FAMM president Kevin Ring. “On one hand, the First Step Act’s reforms to compassionate release worked as intended and this family prevailed. On the other hand, it blows my mind that the Justice Department and BOP still fought tooth and nail to keep a low-level drug offender who is dying of brain cancer and bound to a wheelchair away from his family for the final weeks of his life. They’ll say they were just doing their jobs, but their job is to do justice.”

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Judge Andrew Napolitano of Fox News has long argued for libertarian positions on the nation’s largest cable news network, consistently holding George W. Bush, Barack Obama, and now Donald Trump accountable for alleged abuses of power.

In Napolitano’s analysis, the Mueller report on Russian interference in the 2016 election lays out multiple instances in which President Trump attempted to interfere with the investigation, thus making him guilty under federal laws governing the obstruction of justice.

The president responded with a series of hostile tweets claiming, among other things, that Napolitano had asked to be named to the Supreme Court and requested a pardon for a mutual friend.

Napolitano sat down with Reason‘s Nick Gillespie to defend his name, lay out his case against the president, explain why Attorney General William Barr has been bad since his days in the George H.W. Bush administration, and put Donald Trump’s presidency in a historical and constitutional context.

Hosted by Nick Gillespie. Edited by Ian Keyser. Intro by Meredith Bragg. Cameras by Jim Epstein and Kevin Alexander.

For an audio version of this interview, go here.

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Judge Andrew Napolitano of Fox News has long argued for libertarian positions on the nation’s largest cable news network, consistently holding George W. Bush, Barack Obama, and now Donald Trump accountable for alleged abuses of power.

In Napolitano’s analysis, the Mueller report on Russian interference in the 2016 election lays out multiple instances in which President Trump attempted to interfere with the investigation, thus making him guilty under federal laws governing the obstruction of justice.

The president responded with a series of hostile tweets claiming, among other things, that Napolitano had asked to be named to the Supreme Court and requested a pardon for a mutual friend.

Napolitano sat down with Reason‘s Nick Gillespie to defend his name, lay out his case against the president, explain why Attorney General William Barr has been bad since his days in the George H.W. Bush administration, and put Donald Trump’s presidency in a historical and constitutional context.

For a video version of this interview, go here.

Subscribe, rate, and review our podcast at iTunes.

Audio production by Ian Keyser.

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Yesterday House Speaker Nancy Pelosi accused Attorney General William Barr of committing a crime by lying to Congress about Robert Mueller’s objections to his summary of the special counsel’s report. Justice Department spokeswoman Kerri Kupec called that allegation “reckless, irresponsible, and false.”

Kupec did not elaborate on her reasoning, probably because the explanation would not reflect well on Barr’s candor and honesty. She is nevertheless right to question Pelosi’s claim.

“The attorney general of the United States of America was not telling the truth to the Congress of the United States,” Pelosi said. “That’s a crime.”

Not quite. 18 USC 1621 makes it a felony, punishable by up to five years in prison, for someone to lie under oath. He is guilty if he “willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.” But the Supreme Court has held that the perjury statute does not apply to a statement that “is literally true but not responsive to the question asked and arguably misleading by negative implication.”

Another possibly relevant law, 18 USC 1001, makes it a felony, also punishable by up to five years in prison, to “knowingly and willfully” make “any materially false, fictitious, or fraudulent statement or representation” in congressional testimony. A statement can be misleading without being knowingly and materially false.

Keeping those qualifications in mind, let’s consider the testimony Pelosi thinks makes Barr guilty of a felony. When Barr testified before a House appropriations subcommittee on April 9, Rep. Charlie Crist (D-Fla.) asked him about an April 3 New York Times story that said members of Mueller’s team were unhappy with his March 24 summary of their findings:

Christ: Reports have emerged recently, General, that members of the special counsel’s team are frustrated, at some level, with the limited information included in your March 24 letter, that it does not adequately or accurately, necessarily, portray the report’s findings. Do you know what they’re referencing with that?

Barr: No, I don’t. I think, I suspect, that they probably wanted, you know, more put out, but in my view, I was not interested in putting out summaries, or trying to summarize, because I think any summary, regardless of who prepares it, not only runs the risk of, you know, being underinclusive or overinclusive, but also, you know, would trigger a lot of discussion and analysis that really should await everything coming out at once.

It has since emerged that Mueller himself, on three occasions in late March (twice in letters and once on the telephone) had told Barr his summary “did not fully capture
the context, nature, and substance of this Office’s work and conclusions,” resulting in “public confusion about critical aspects of the results of our investigation.” When Barr testified before the Senate Judiciary Committee on Wednesday, Patrick Leahy (D–Vt.) asked him about the apparent inconsistency between those communications and his statement to Crist that he didn’t know why Mueller’s underlings were “frustrated” by his summary:

Leahy: Why did you say you were not aware of concerns, when weeks before your testimony Mr. Mueller had expressed concerns to you? I mean, that’s a fairly simple—

Barr: I answered the question, and the question was relating to unidentified members who were expressing frustration over the accuracy relating to findings. I don’t know what that refers to at all. I talked directly to Bob Mueller, not members of his team. And even though I did not know what was being referred to, and Mueller had never told me that the expression of the findings was inaccurate—but I did then volunteer that I thought they were talking about the desire to have more information put out. But it wasn’t my purpose to put out more information.

Later in the hearing, Sen. Sheldon Whitehouse (D–R.I.) called Barr’s explanation “masterful hairsplitting,” which is not necessarily the same thing as a lying. What Barr told Crist was not helpful, candid, or forthcoming, and it created the misleading impression that Barr was “not aware of concerns,” as Leahy put it. But Barr never actually said that.

The perjury statute, as interpreted by the Supreme Court, pretty clearly does not apply to Barr’s April 9 testimony. Whether 18 USC 1001 applies is a closer call. But if we give Barr the benefit of the doubt, which is what he would get if he were actually prosecuted for lying to Congress, his “masterful hairsplitting” seems like enough to prevent a conviction.

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