Former New York City financier Bernie Madoff is serving a 150-year term in the federal prison system following guilty pleas to multiple charges involving a $20 billion Ponzi scheme that bilked a wide range of celebrities, charities, financial funds, friends and average investors.


Housed in the Federal Correctional Center near Butner, North Carolina, Madoff is now 81 years of age and is dying from kidney failure.


Last July, the reviled financial kingpin petitioned the U.S. Justice Department (DOJ) for clemency from President Trump. That application is still pending in the Justice Department’s clemency bureaucracy with little expectation that the department will forward a favorable recommendation to the president. That’s because the U.S. Bureau of Prison (BOP) last September rejected Madoff’s administrative request for compassionate medical release.


Faced with no other meaningful options to secure his client’s release, Madoff’s attorney, Brandon Sample, filed a motion for compassionate leave in the U.S. District Court seeking his client’s release so he can go home and die with family.


Compassionate Medical Release


In support of his motion, Sample cited the court’s recent decision to grant compassionate leave to former WorldCom executive Bernard Ebbers, who was serving a 25-year sentence for an $11 billion accounting fraud scheme involving his company. Compassionate release was grant to Ebbers because of his age (78 years) and deteriorating health. Ebbers died on February 2, 2020.


Provisions of the First Step At (ACT), § 3582(c)(1)(A)(i), signed into law on December 21, 2018 by President Trump, allows for compassionate release due to terminal illness.


Interpreting the statutory sentencing factors set forth in 18 U.S.C. § 3553(a), the U.S. Sentencing Guidelines, 1B1.13 (p.s.), comment. (n.1(A)(i)), recognized before the Act that became law that the “compelling and extraordinary reasons” necessary to secure a sentence reduction included “a terminal illness (one with an end of life trajectory)” such as metastatic cancer, though no “specific prognosis of life expectancy” was required.


The problem inherent in compassionate leave requests is that the district court enjoys unfettered discretion in whether to grant the request. For example, the district court may find “compelling and extraordinary reasons,” such as a “terminal illness,” for compassionate release and even find that the prisoner would not pose a danger to the community if released only to deny the request for release for any number of reasons.


On January 28, 2020, the Fifth Circuit Court of Appeals in United States v Chambliss dealt with such a case. In that case Orbie Dale Chambliss was serving concurrent 360-month and 240-month concurrent prison terms for 2005 convictions for trafficking in methamphetamine.


In September 2018, Chambliss was diagnosed by BOP medical staff with advanced liver cancer with a two to three month life expectancy. Chambliss filed an administrative request for compassionate leave. Although the BOP found that the prisoner’s health was deteriorating and he was eligible for compassionate release, the BOP nonetheless denied his release request, citing “the serious nature of [his] offense and his violent criminal history” followed up with the conclusion that “his release at this time would minimize the severity of his offense.”


In response to Chambliss’s sentence reduction motion, the U.S. District Court in the Western District of Texas essentially reached the same conclusions as the BOP.


The Fifth Circuit said at the outset its only duty was to determine whether the district court abused its decision in denying the compassionate leave request. The court explained what such a review should entail:


“To date, this court has not said what constitutes an abuse of discretion for compassionate release claims under § 3582(c)(1)(A)(i) of the First Step Act. However, the standard applicable to other motions for sentence reductions under § 3582(c)(2) is instructive. In that context, a court abuses its discretion if it ’bases its decision on an error of law or a clearly erroneous assessment of the evidence’ … Furthermore, in reviewing the application of the § 3553(a) sentencing factors, we look to the standard articulated in Gall v. United States … In Gall, the Supreme Court reasoned that a “sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case’ … Thus, we give deference to the district court’s decision and note that reversal is not justified where ‘the appellate court might reasonably have concluded that a different sentence was appropriate.’ Because we afford such deference to the district court, we in turn require a thorough factual record for our review. Accordingly, the district court must provide specific factual reasons, including but not limited to due consideration of the § 3553(a) factors3, for its decision.”


Reasons to Deny Compassionate Medical Release


The appeals court accepted the reasons the district court used to deny Chambliss’s compassionate release:


  • Conviction for serious drug offense, involving severe criminal conduct,
  • Violent criminal history,
  • The offenses of conviction were committed while Chambliss was on parole,
  • That the 14 years served was not sufficient punishment for crimes of conviction,
  • Making Chambliss serve full 30-year term would be just and serve as deterrent, and
  • Chambliss was receiving adequate medical care in the prison system.


Only two of these reasons could apply to Madoff’s case: full sentence service is the only just punishment and the medical care the financier is currently receiving in prison is adequate.


Number of Inmates Dying in Prison on Rise


The U.S. prison population—currently standing at roughly 2.3 million—has increased 500 percent over the past four decades. Consequently, more inmates are dying incarcerated each year. The most recent data available through the Bureau of Justice Statistics shows that 4,980 inmates died in U.S. prisons in 2014—a 3 percent increase over 2013.


According to a May 2019 The Guardian report, Texas has the highest inmate mortality rate in the U.S.  although Mississippi jails recorded 16 death in one month in 2018. Dozens of states have also seen a marked increase in deaths in their jails and prisons.


Dying in prison before a sentence is completed—either from natural causes, medical neglect, or excessive force by guards—has become a common occurrence in the nation’s prison systems, especially in Texas.


We suspect that Bernie Madoff will become one of these unfortunate statistics, joining thousands of low-profile prisoners who disappear without note.