DYING INMATES MAY BE GIVEN LENIENCY

New Guidelines, Which May Be Effective Nov. 1, Would Give Judges
Greater Power Over Early Releases.

WASHINGTON -- By the summer of 2004, years of hard luck and hard
living had caught up with Michael Paul Mahoney. He was in the very
end stages of terminal non-Hodgkin's lymphoma, and his liver was shot
from years of alcohol abuse.

He wanted to come home from prison to die.

"My brother has had a pretty bad rap in life, and I am pleading for
you to sign his release and let him come home to be with his family
his last few weeks of life," his sister, Dixie Taylor, wrote to the
director of the federal Bureau of Prisons in July 2004.

Mahoney's case worker supported his early release. So did the
law-and-order judge who had sentenced him more than a decade earlier.

Every year, about a dozen of more than 200,000 inmates in federal
custody around the country have their sentences commuted for health
reasons. The actions are part of a safety valve included in an
otherwise tough law enacted by Congress in 1984 that stiffened
sentences in federal prison and abolished parole.

As interpreted by prison officials, the idea is to give the
terminally ill -- and those so profoundly disabled that they can no
longer care for themselves -- an opportunity to have their sentences
commuted. The provision -- dubbed "compassionate release" by the
government -- gives the inmate a chance to die at home or among loved
ones, and the government a chance to pass along some of the often
heavy costs of incarcerating and caring for sick prisoners.

But advocates for inmates say the way the statute is actually carried
out is anything but compassionate. Few terminally ill inmates are
approved for release, and the bureaucracy is such that even when
people are approved, they often die before they get out. The
advocates also contend that prison officials have misconstrued the
original intent of Congress and interpreted the grounds for release
much too narrowly.

Now, in a departure from the tough sentencing policies that it has
legislated for more than two decades, Congress is poised to allow
guidelines to go into effect starting Nov. 1 that would give federal
judges much greater power to release federal inmates.

The new guidelines would be a victory for advocacy groups that have
been seeking more lenient treatment for years. They would also put
the federal government ahead of a movement in which a number of
states, including California, have sought to expand their early-release laws.

But whether the Bureau of Prisons will go along is far from clear.
Although compassionate releases must be ordered by federal judges,
the Justice Department's prisons bureau acts as the gatekeeper in
bringing early-release requests to the courts.

A Justice Department official last year called the proposed
guidelines "an excess of permissiveness" that could be "an incitement
to prisoners" to file lawsuits.

The issue could present an early test for Atty. Gen.-designate
Michael B. Mukasey, who faces a confirmation hearing in the Senate this week.

The new guidelines, developed by the U.S. Sentencing Commission,
would empower judges to commute sentences in "extraordinary and
compelling" circumstances.

Some legal experts argue that the original intent of the law was to
cover health concerns and a range of purposes such as rewarding
prisoners for acts of heroism or assisting the government, giving
them the benefit of later changes in applicable laws, or eliminating
disparities in sentences they received compared with co-defendants.

One of the proposed guidelines would allow for early release of
incarcerated women with minor children in case of death or
incapacitation of relatives capable of caring for the children.

Prison officials decline to say whether they will now support a more
generous approach to early release. The Bureau of Prisons "will
carefully assess how it may or may not affect our decisions in these
matters," spokeswoman Traci Billingsley said.

The proposed changes are putting the spotlight on current practices
in granting or denying compassionate release.

The Bureau of Prisons has required that an inmate be within a year of
death or else suffering from a debilitating and irreversible
condition that has "eliminated or severely limited the inmate's
ability to attend to fundamental bodily functions and personal care
needs," according to a letter last year from the department to the
sentencing commission obtained by the Los Angeles Times. The standard
has come to be known among defense lawyers as "the death-rattle rule."

In the last four years, the agency said it had approved 65 early
releases out of 121. But those numbers exclude many more requests
that do not reach headquarters because they have been dismissed in the field.

This summer, the Bureau of Prisons refused to grant an early release
to an 86-year-old North Carolina woman, Alva Mae Groves, who had been
sentenced to 25 years in prison for conspiring to sell crack cocaine
with her son. Officials told Groves' children that an early release
was not granted because the crime was too serious and a release would
send the wrong message.

Her family argued that her advanced age -- she was 74 at her
sentencing -- and her multitude of health issues warranted her being
released. She died in August in federal prison in Texas.

Mahoney is a "textbook example of the person who ought to have been
released," said Mary Price, general counsel of Families Against
Mandatory Minimums, a Washington-based advocacy group for inmates
that worked with Mahoney's family.

Mahoney had been sentenced to 15 years in prison in 1994 for being a
felon in possession of a handgun.

The law he was punished under was intended for career criminals.
Mahoney's lone encounter with the law was a conviction for selling
about $300 worth of methamphetamine to an undercover cop in the
1970s. He bought the gun that got him in trouble years later, after
buying a pool hall in Jackson, Tenn., and figuring he needed some
protection when making bank deposits at night.

The authorities became aware that he owned a gun only after he had
reported the weapon stolen, and federal agents found that he had
failed to disclose his earlier drug conviction when he purchased it.
Though lying on a federal gun application ordinarily carries a
sentence of no more than three years in prison, the law sets a
15-year minimum for people convicted of three felonies who are found
to possess a gun.

The fact that Mahoney was charged with three separate counts, because
he sold the drugs in three separate transactions to the undercover
cop, dictated the harsher sentence.

He petitioned the Clinton administration for clemency but was turned down.

By 2004, a decade into his term, he was bedridden and incoherent from
various maladies. He was certainly not a threat to anyone, said his
father, Robert Mahoney. "He could not even get out of bed," his father said.

His case worker at the federal prison in Lexington, Ky., supported
his request for early release. "He has served a significant majority
of his sentence, there are no indications his early release would
pose a public-safety threat, and his medical condition is predictably
life-threatening in the very near foreseeable future," wrote Darrell Lauer.

The Bureau of Prisons rejected the request on July 22, 2004, citing
"the totality of the circumstances" and Mahoney's "multiple felony
convictions."

Mahoney's family continued to press its case.

U.S. District Judge James Todd, an appointee of President Reagan,
wrote to Bureau of Prisons Director Harley Lappin on July 26, 2004,
urging leniency. "Mr. Mahoney's case has troubled me since I
sentenced him in 1994," Todd wrote. "In my judgment, Mr. Mahoney's
sentence was one of those cases in which a well-intentioned and sound
law resulted in an injustice."

Mahoney's sister fired off an e-mail to Lappin the next day. "I think
he is only holding on because he does not want to die in prison
alone, and we are going to do whatever we can to see that he does
not," Taylor pleaded.

But three days later, on July 30, 2004, the prison chaplain called
Mahoney's mother to tell her that he had died, alone, in a prison hospital.

His body was shipped home, and he was buried in Jackson. He was 49.

Although acknowledging that her brother had made mistakes, Taylor
thinks the way he was treated was itself a crime.

"Toward the end, he was very, very bitter," she said. "Who wouldn't be?"