Thursday, March 23, 2017

Medical Care in the BOP

You might think that it would be nearly impossible to win an appeal that a sentence is unreasoanble based on your clients unique health issues. And, evidenced by the majority in United States v. Rothbard, you may be right.

Jeffrey Rothbard suffers from a unique type of leukemia. And the medication that Mr. Rothbard needs to keep him alive costs over $100,000 a year. So after entering a plea to a wire fraud offense (while on probation for a state check fraud case), he asked for a nonprison disposition to his case. To support this request he provided evidence that the BOP could not guarantee that he would get that expensive, life saving medication. The probation office joined him and asked for a combination of halfway house, home confinement, and probation. However, the district court sentenced Mr. Rothbard to 24 months in BOP. The government was able to produce evidence that in the past, inmates with a similar condition got that medication. He appealed, arguing that such a sentence was unreasonable. The majority affirmed. And although it was not guaranteed in this case, the majority believed he was likely to get the medication and, if he did not get the medication, he could file a greivance with the BOP.

And then Judge Posner wrote a dissent that included dropping this bomb:

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.

 Besides that great quote, Judge Posner's dissent is a helpful resource for anyone trying to get a non-prison disposition for a client with health issues. He not only provides some excellent research to support such a motion, but he also recommends that the district court conduct a review that includes
"neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions." Hopefully someone can use his work to get a favorable disposition in district court - winning on appeal seems unlikely.

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