The fate of Lynne Stewart, one of the first victims in the War on Terror, is once again in the hands of one man, Judge John G. Koeltl. As her body is overrun with cancer and the 73-year woman’s health is in rapid decline, her loved ones and supporters hold out hope that she may yet be spared the cruelty of dying in prison. An emergency motion to consider her plea for compassionate release has been filed and Judge Koeltl will consider it on Thursday, August 8.
Seven years ago, Lynne Stewart stood before Judge Koeltl to be sentenced in a New York District Court. Before he did so, the judge considered the entirety of the life of the then 67-year-old woman.
As he prepared to hand down his original sentence, Judge Koeltl noted to the packed courtroom that prior to becoming a lawyer, Stewart had worked as a teacher at inner city schools. When she turned to law she did so not "to earn personal wealth", but to represent the indigent and most unpopular of clients, and Judge Koeltl observed that she performed her role as a criminal defence lawyer with "enormous skill and dedication."
"By providing a criminal defence to the poor, the disadvantaged and unpopular over three decades, it is no exaggeration to say that Ms. Stewart performed a public service not only to her clients but to the nation", he declared.
The qualities that Koeltl lauded steered him to defy the pernicious desires of the Ashcroft Justice Department to lock Lynne Stewart up for thirty years - the maximum allowed - and sentence Stewart to 28 months in prison.
However, at the behest of the Second Circuit Court of appeals, Judge Koeltl betrayed his original sentence, extending it to ten years. Judge Koeltl justified his re-sentencing by arguing Stewart had not shown sufficient remorse, citing her expression of relief to her supporters massed outside the courtroom after the sentencing: "As my clients would say, I can do this standing on my head."
So once again Judge Koeltl will consider - and possibly rule on - Lynne Stewart’s case, but this time she will not be present. She remains incarcerated at Federal Medical Center Carswell in Fort Worth Texas, where she has been for the past three years, and where she is dying of cancer.
Lynne began her application for compassionate release at the beginning of April. In May the application received a recommendation from her warden at Carswell and was then forwarded to the Federal Bureau of Prisons, where the power to pass on her application to a federal court lies.
Nearly concurrent with Lynne's application, the Department of Justice Inspector General published a scathing report on the Federal Bureau of Prisons’ failure to carry out their obligation to release terminally ill inmates through the compassionate release program. The IG described the program as "poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided", as a New York Times editorial excerpted from the report.
A December 2012 Human Rights Watch report, The Answer is No, found that, between 1992 and 2012, only 492 inmates were released through the program, and then only when the applicant was within one year of death. HRW indicted the Bureau of Prisons for blocking most requests from even reaching the federal courts, which hold the power to commute a prisoner's sentence.
According to statistics compiled by the BOP, the Bureau of Prisons would sooner let a sick prisoner die in prison than refer him or her to a federal court: "Between 2000 and 2008, on average, 21.3 motions were filed each year. In about 24 percent of those motions, the prisoner died before the district court ever had a chance to rule on the motion."
The option for compassionate release was injected into the criminal justice proceedings through the 1984 Sentencing Reform Act, with the intention of humanising the most execrable institutions we have: prison. Factors that should qualify a prisoner for release include suffering from a terminal illness; a permanent physical or medical condition; a significant deterioration of mental capacity; impairment due to old age; or if the sole adult responsible for taking care of the prisoner's minor children dies or becomes incapacitated.
Lynne's prison physician has given her a prognosis of, at most, 18 months to live, while other doctors have estimated her life expectancy to be closer to 12 months.
But on 24 June, the Bureau of Prisons denied Lynne's application for compassionate release. In a brief two-paragraph response, the BOP justified its dismissal on the grounds that Lynne appeared to be "responding well to treatment".
Stewart's lawyers filed an emergency motion with Judge Koeltl in July, asking that he grant compassionate release. They argue that the BOP’s record of negligence and outright disregard for "compassion" should allow Judge Koeltl to override procedural guidelines that require that the BOP refer applications to the sentencing judge.
Meanwhile, Obama's Justice Department is working hard to scuttle this move and ensure that Lynne Stewart dies in prison. At an initial hearing last Wednesday, prosecutors argued that Koeltl has no jurisdiction in the matter of reducing Stewart's sentence to time served absent a BOP directive.
In the past, Judge Koeltl has displayed not only respect for Stewart but hints of compassion for her condition; when he passed down the original sentence in 2006 he acknowledged that her physical frailty made her particularly unsuited for a lengthy sentence. Last Wednesday, Judge Koeltl directed the prosecutors to produce their argument against the court's jurisdiction, as well as to produce the medical records that provided the basis for the BOP's denial of Lynne's application for compassionate release - that is, the evidence that her health is indeed improving.
Lynne Stewart is a high-profile white woman in prison. She never speaks of her own misery receiving chemotherapy in shackles without emphasizing that she believes others around her with less privilege or support have it worse. While Lynne Stewart is clearly worthy of compassionate release, it's clear she is not the only very sick person in prison whose life is of worth, or who should not die there.
While right-wing extremists bay for her blood, Stewart has never been considered a threat to anyone. Were she to be released from Carswell prison, Lynne would be reunited with her husband Ralph, her children and many grandchildren in New York, and "spend her last days in the company of those who love her so very much." Were she to be released from Carswell prison, there might be reason to think that not only compassion, but also reason, had found some scant source of light and air.
Charlotte Silver is an independent journalist currently based in San Francisco. She has written for Inter Press Service, Truthout, The Electronic Intifada, Al Ahkbar and many other publications.
Follow her on Twitter: @CharEsilver
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.