Law Students

Lockerbie Bomber ? What if he lives?

By Casebook Sherpa

It took 13 years to catch and convict Abdelbaset Ali Mohmed Al Megrahi for his involvement in the bombing of Pan Am 103 over Lockerbie, Scotland on December 21, 1988. The bombing killed 249 people. Eight years after the only person convicted for the terrorist act was sentenced to life in prison, Scotland released him “on compassionate grounds.” Evidently he suffers from terminal prostate cancer that has “spread widely” through his body, leaving him just weeks to live. Scottish law provides “for release on compassionate grounds of prisoners with terminal illnesses whose life expectancy was less than three months.” (NY Times)

This morning, some are asking whether the release is based more on strategic energy and diplomatic priorities than humanitarian concerns. Whatever the reason, this scene makes me angry.

Scotland, for its part, is saying Libya now needs to act “responsibly” in how it treats this matter.

The families of the American victims, for their part, were split on the idea with some accepting the idea of his release so long as he could not go back to Libya and others planning protests.

Libya, for its part, greets him as a hero with Gaddafi (he of “reformed” terrorist sponsor and “taking responsibility” for the bombing fame) sending his private jet to spirit home their national hero.

Megrahi, for his part, openly mocks the process: “The remaining days of my life will have to be spent under the shadow of the wrongness of my conviction.”

So, what of this “compassionate release”? Once you’re sentenced to life in prison, does it matter when or how you die? And does a terminal illness – should it – excuse you from serving the sentence imposed by a court of law (and after several appeals)? Why should the fact that you have cancer give you the privilege of dying a free man when others who don’t have the illness get no such free pass?

Interestingly, United States law also provides for compassionate release.

The Sentencing Law and Policy blog summarized the United States’ law on compassionate release:

Though federal law has a statutory provision for compassionate release in 18 USC § 3582(c), the application of this statute has been notoriously stingy (as recently detailed by Mary Prince in this recent Federal Sentencing Reporter article).  As detailed in this ABA document, the US Sentencing Commission a few years ago issued new guidelines concerning the implementation of federal compassionate release rules.  But the reactions of the White House and the Secretary of State to Scotland’s decision in this high-profile case spotlights that the concept of compassionate release is still not seriously embraced in the United States.

Steve Sady adds this useful background (linked from the Sentencing Law post above):

When Congress enacted the Comprehensive Crime Control Act of 1984, everyone knew the actual time prisoners serve for federal crimes was going to skyrocket ? as indeed it did. With this knowledge, Congress included in two places a provision for reduction of sentences based on “extraordinary and compelling” circumstances arising well after the federal sentence becomes final.

The basic provision is 18 U.S.C. § 3582(c), which allows the federal judge to reduce the term of imprisonment, after considering the 18 U.S.C. § 3553(a) factors, where “extraordinary and compelling reasons warrant such a reduction.” The statute names the Director of the Bureau of Prisons as the person to commence such a proceeding by filing a motion. Congress then assigned to the Sentencing Commission the responsibility ? in the mandatory “shall” language ? for expanding on the statutory language in § 3582(c) by setting criteria and providing examples, with the only limitation that rehabilitation “alone” is not sufficient.

This carve out was never really addressed, enacted or applied for several years following adoption of the act, despite Senate report language accompanying the bill stating that terminal illness be considered grounds for sentence mitigation. See William W. Berry III, Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release, 68 Md. L. Rev. 850, 860 (2009) (Available here). That still hasn’t changed American skepticism when it comes to use of compassionate release (though the Berry article does a fairly good job addressing how expanded use of this form of release could address various goals of the penal system, including deterrence and cost efficiency).

As an example of how this is applied here, Charles Manson follower Susan Atkins’ request for compassionate release was denied, with the debate turning on state law and issues such as the cost of keeping her in prison, the dignity of dying at home, and considerations of justice for the people she murdered:

Atkins, 60, played a central role in the 1969 slayings of pregnant actress Sharon Tate and others in a bloody two-night rampage in the Los Angeles area. She has served 37 years in prison, longer than any other female prisoner, officials said.

Now ill with brain cancer and with one leg amputated and the other paralyzed, Atkins has only months to live, doctors have said.

The petition for Atkins’ release had ignited debate about when mercy is appropriate, particularly considering the grisly crimes for which she was convicted. With the rejection by the panel, the process is effectively over, making it highly likely that she will die in custody.

Those backing her release argued unsuccessfully that the cost of keeping Atkins in prison, which is estimated at $1.4 million for medical care and security just since March, should be a factor in favor of releasing her because it would save the state substantial amounts of money.

On the differences between UK and US compassionate release policies, see also here, but the state parole board offered no explanation for why it denied release to Ms. Atkins, illustrating how the American prison system sees no reason to explain denial of compassionate release requests to the public or inmates. Atkins is seeking parole this year.

I’m fine with that. (not her getting parole but our system rarely giving out compassionate release)

But let’s say there’s one last ditch effort in Libya to treat or remove Megrahi’s cancer. As unlikely as it is, what if he gets better? This is where I get a bit fuzzy, and the law does not really address it, though I guess the fact that the sentence is actually being shortened through a type of sentencing hearing means they will not be sent back to prison regardless. They also may not go back because the doctors are right – they die within a few months anyway free, and not imprisoned as society originally judged they should. Either way, I think they should stay in prison – the process gave them life (or whatever term) and they should serve that sentence.

Ernest Saunders, for example, miraculously recovered from Alzheimer’s after being released from prison after being convicted in a fraud scheme. There was much talk that his symptoms were false (either intentionally manufactured or the side-effect of some medication). Either way, he never went back to prison to serve out the remainder of his 5-year sentence after his recovery.

In this case, given the political and heinous nature of the crime, should he go back even if those released aren’t typically taken back to prison?

Full post as published by Fight The Hypo on August 21, 2009 (boomark / email).