A week ago, Ellen Lake, Tapia-Ponce’s pro bono attorney, emailed U.S. Attorney Eileen Decker. She asked for an urgent meeting to discuss Decker’s continued opposition to her dying client’s request for a compassionate release. Under federal law, only the BOP can petition a court for the compassionate release of a federal prisoner.
Attached to Lake’s email was a letter from Mexico’s Ambassador to the United States, Miguel Basanez, the former director of the Judicial Reform Program at Tufts University’s Fletcher School of Law and Diplomacy. Ambassador Basanez reported that during a recent consular visit at the BOP’s medical center, Tapia‐Ponce was found to be suffering from a severe gastric ulcer that made it difficult for him to eat. The condition, Basanez said, reduced Tapia-Ponce’s life expectancy “in the short term.”
Basanez argued that Tapia‐Ponce had “a consistent history of good behavior in prison,” “no history of violence” and was “not likely to pose a threat to any of our societies, if released and repatriated to Mexico.”
Basanez’s letter concluded: “The Government of Mexico believes there are extraordinary and compelling humanitarian reasons in Mr. Tapia’s case for the Government to request” a compassionate release “for (the) sake of fairness and humanity on which our societies are founded.”
Ten minutes after sending Basanez’s letter by email, Lake received a call from Assistant U.S. Attorney Chris Kendall, who instructed her not to send any further communications. In a conversation straight out of Kafka’s The Trial, Kendall tersely informed Lake that no one would meet with her, the U.S. Attorney’s position was final, and the office was not willing to change it or to even talk about it.
Such officious indifference is familiar to judges and criminal defense attorneys who deal with the unchecked power of federal prosecutors on a daily basis. Prosecutors like Decker and Kendall act more like kings’ ministers dispensing pardons than representatives of the people dispensing justice.
Such a steely sense of certainty and rectitude is what Victor Hugo described in Inspector Javert as “the evil of the good.”
“Probity, sincerity, candor, conviction, the sense of duty, are things which may become hideous when wrongly directed,” Hugo wrote in “Les Miserables.” “They are virtues which have one vice — error.”
No less culpable for the injustice inflicted on Tapia‐Ponce is Kathleen M. Kenney, the BOP’s assistant director and general counsel. Since 2013, Tapia‐Ponce was twice approved by two different prison wardens as eligible for a compassionate release. Yet Kenney waited eight months before denying Tapia-Ponce’s first request on a technicality. Kenney delayed her ruling on Tapia-Ponce’s second request for five months after it was filed in August 2015.
As Tapia-Ponce’s health deteriorated, Kenney ignored Lake’s repeated letters and telephone calls seeking a decision. Finally, Lake was forced to file a motion requesting that the U.S. District Court order the BOP to rule on her dying client’s request for a compassionate release. Kenney finally denied Tapia-Ponce’s second request the day before the scheduled court hearing, but failed to inform the court or Lake of her decision.
Kenney’s denial letter conceded that Tapia‐Ponce met all of the BOP’s requirements for a compassionate release.
The disgraceful way in which Kenney handled Tapia-Ponce’s requests is not an isolated incident. Since 2004, Kenney has presided over a compassionate release program that the DOJ’s Office of Inspector General (OIG) described as “grossly mismanaged” in a scathing 2013 report. The year before, Human Rights Watch filed a report that was also highly critical of the BOP’s badly mismanaged compassionate release program.
In late 2013 the DOJ announced the adoption of expanded compassionate release guidelines. However, as Tapia-Ponce’s case demonstrates, there has been little overall change in Kenney’s mismanagement of the program. Kenney’s continued malfeasance justifies her immediate removal.
A 2015 DOJ OIG report, “The Impact of an Aging Inmate Population on the Federal Bureau of Prisons,” concluded that a properly managed compassionate release program would result in a dramatic reduction of the federal prison population. Obama, who has yet to appoint a new BOP director since the retirement of Charles Samuels last year, should choose a proven manager from outside the BOP bureaucracy; someone who is capable of restructuring the compassionate release program into an engine for the rapid reduction of the federal prison population through the release of sick and aging prisoners.
Congress will consider comprehensive criminal justice reform later this year. Any legislation passed must allow qualified federal prisoners to bypass the BOP bureaucracy and file their compassionate release requests directly with the courts.
Of all those involved in Carlos Tapia-Ponce’s case, only one person deserves to be applauded. As much as Decker and Kenney represent the worst failings of the American criminal justice system, Ellen Lake’s pro bono efforts on behalf of Tapia‐Ponce represent the best traditions of that system. After decades of indifference, Carlos Tapia‐Ponce died knowing that there was at least one person involved in the U.S. court system who cared about what happened to him and was willing to fight for justice in his case.