Bernard Madoff Wants Early "Compassionate Release" Based On Failing Health
Less than 11 years into his 150-year prison sentence after admitting to operating the largest Ponzi scheme in history, Bernard Madoff has asked a New York federal court to exercise a “modicum of compassion” by freeing him to allow him to spend his estimated remaining 18 months with his family members. In a Motion for Compassionate Release filed yesterday, Madoff cited a litany of medical issues plaguing him and contended that “circumstances have changed” in attempting to justify his release under the Bureau of Prison’s compassionate release program. Apparently in connection with the motion’s filing, Madoff was quoted in the Washington Post that “I’ve served 11 years already, and, quite frankly, I’ve suffered through it.”
Until recently, the BOP’s Compassionate Release program was the sole arbitrer of a prisoner’s request for compassionate release. Notably, only the BOP had the ability to ask a court to determine whether release was warranted - a step which studies showed was rarely if ever taken. In a study by the Marshall Project, the Bureau of Prisons approved 6 percent of the 5,400 applications received from 2013 to 2017. And according to a 2012 report by Human Rights Watch and Families Against Mandatory Minimums, the BOP routinely refused to bring prisoners’ compassionate release requests to courts - averaging only two dozen court requests per year from 1992 to 2012.
The First Step Act, passed in late 2018 with broad bipartisan support, included a series of criminal justice reforms that included a sweeping overhaul of the compassionate release program. Although the Act did not change the statutory standards for compassionate release, it gave inmates the ability to bring their own motion for compassionate release once their petition was denied by the BOP. Thus, an option that had been elusive at best and historically unavailable to inmates was now within their arsenal once their request for compassionate relief was denied by the BOP.
Madoff’s Motion spends roughly five pages articulating the history of compassionate release and the recent changes by the First Step Act, ultimately arguing that the Southern District of New York had the authority to reduce his 150-year prison term if: (1) he had fully exhausted his adminstrative rights to appeal the BOP’s denial of his request; (2) “extraordinary and compelling reasons” warranted a reduction in his sentence; (3) consideration of factors set forth in section 3553(a); and (4) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
With the first factor not in dispute given the BOP’s prior denial, Madoff contended that his dire health constituted “extraordinary and compelling reasons” justifying his release. In addition to pointing to a litany of maladies plaguing him, including end-stage renal disease, hypertension, cardiovascular disease, esophageal reflux, hyperparathyroidism, bladder neck obstruction, and insomnia, Madoff also revealed that the BOP had concluded that his condition was “considered terminal with a life expectancy of less than 18 months.” Madoff argued that his release would be consistent with applicable policy statements issued by the Sentencing Commission, noting his history of non-violence, limited remaining lifespan, and lack of danger to the community. Madoff also references the recent decision by a New York federal judge to grant compassionate release (over the BOP’s objections) to former WorldCom CEO Bernard Ebbers based on his medical condition after Ebbers had served roughly half of his 25-year sentence.
The Motion goes to great lengths to emphasize both Madoff’s diminished medical state and the toll that his current sentence has imposed on him. Madoff reportedly uses a walker to ambulate, experiences weakness and fatigue, and uses supplemental oxygen for shortness of breath. He also claims to have served his “golden years” from age 71-81 behind bars in arguing that his early release would not diminish the seriousness of his offense. According to Madoff, “even with release, Madoff still will serve a functional life sentence.”
The Motion also gives a glimpse of how Madoff envisions a potential life outside prison. Having forfeited all of his assets as part of his plea agreement with the government, Madoff noted his intent to survive off Social Security and Medicare benefits. He also suggested that he will reside with an unnamed friend, rather than his wife.
A copy of the Motion is below: