In an extraordinary rebuke, a federal judge in Florida said officials misled a court to block the compassionate release of prisoner who was dying of cancer.
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A photograph released by the court of Frederick Mervin Bardell in the hospital.
WASHINGTON — A federal judge in Florida issued an extraordinary rebuke of prison officials and prosecutors, accusing them of misrepresenting the cancer diagnosis of a terminally ill inmate who was deprived access to compassionate release programs and subjected to a grueling journey home that ended in his death.
Judge Roy B. Dalton Jr. of the U.S. District Court for the Middle District of Florida held the Federal Bureau of Prisons and Kristi Zook, the warden of the low-security prison in Seagoville, Texas, in civil contempt of previous court orders intended to ensure the humane treatment of Frederick Mervin Bardell.
Judge Dalton’s order, issued on Oct. 4, came after a court-appointed arbiter described a long pattern of federal neglect and indifference that began with a diagnosis of treatable colon cancer in 2020. The ordeal ended with Mr. Bardell’s death last year, at age 54, when he arrived in Jacksonville, Fla., from Dallas in a weakened, skeletal state.
“Frederick Marvin Bardell was a convicted child pornographer,” Judge Dalton wrote. “He was also a human being.”
In the 14-page order, in unusually agonized and aggrieved language, the judge accused the Bureau of Prisons of being “indifferent to the human dignity of an inmate in its care.”
The Bardell case is the latest in a recent series of scandals, inmate deaths and leadership failures in the federal prison system, which is overseen by the Justice Department.
On Thursday, the department’s inspector general released a memorandum condemning the Prisons Bureau’s handling of abuse accusations against its employees, particularly those involving sexual assault. The report found that inconsistent policies for handling complaints violated federal regulations and bureau policy by undervaluing the testimony of victims.
That created an environment that heightened threats to prisoners, especially women, leading to “unreasonably lenient penalties on staff that engage in serious misconduct,” the report said. The bureau’s “reluctance to rely on inmate testimony” also “likely emboldens miscreant staff members in their interactions with inmates.”
Attorney General Merrick B. Garland recently appointed Colette S. Peters, the former director of the Oregon Department of Corrections, to run the Prisons Bureau. But the Justice Department has yet to announce comprehensive overhauls that advocates say are long overdue.
In a statement, Ms. Peters offered her “deepest condolences” to the Bardell family but declined to comment on the specifics of the case because it was the subject of continuing litigation. But she promised to cooperate with any investigations into the matter.
“In instances where we have failed at upholding our mission, we are taking steps to find out what happened, how it happened and how we can prevent it from happening in the future,” she said.
At the forefront of their requests is increased use of compassionate release. Congress passed a law in 1984 authorizing the practice for “extraordinary and compelling” reasons, such as terminal illnesses. But top prisons officials, leery of releasing repeat offenders, have been cautious despite negligible risk and provisions in the First Step Act of 2018 that were intended to spur greater use of the practice.
“The Justice Department seems hellbent on wasting millions to incarcerate people who pose no risk to public safety, and it makes no sense,” said Kevin Ring, the president of Families Against Mandatory Minimums, a prisoners’ rights group based in Washington. “It is as dumb as it is cruel.”
Judge Dalton recommended that Mr. Garland or the inspector general, Michael E. Horowitz, investigate “the circumstances of Mr. Bardell’s confinement and treatment, the failure of the B.O.P. to respond to his medical needs, and the B.O.P.’s misrepresentations in connection with the compassionate release briefing regarding the seriousness of his condition.”
Senator Richard J. Durbin, Democrat of Illinois and the chairman of the Judiciary Committee, wrote on Twitter that “the details unveiled in this case are appalling, and may not be isolated.” He called on the Justice Department’s inspector general “to investigate B.O.P.’s treatment of medically vulnerable individuals both while incarcerated and upon their release.”
Mr. Bardell was sentenced to 151 months in federal prison in June 2012, after pleading guilty to distributing pornography of adolescent children on a file-sharing network.
Doctors discovered several years ago that he had an intestinal mass. It was determined to be colon cancer that, if treated in a timely manner, would have given him a 71 percent chance of long-term survival, according to a physician interviewed by the arbiter, known as a special master. Instead, it progressed to metastatic liver cancer.
In November 2020, Mr. Bardell, who had experienced bouts of bleeding, applied for compassionate release on the grounds that his condition was terminal. But an assistant U.S. attorney in the Middle District of Florida, Emily C. L. Chang, argued against his release, citing the bureau’s Covid-19 protocols. She also said that Mr. Bardell was not suffering from a terminal illness and could be treated in prison.
Judge Dalton took the government at its word and rejected Mr. Bardell’s release — a decision he said he now believes was based on false information.
“As we now know, it was not true that Mr. Bardell could receive adequate care in custody,” the judge wrote. “And, regrettably, his condition was indeed terminal.”
On Feb. 2, 2021, Mr. Bardell filed a second request, supported by an affidavit from a board-certified oncologist. The U.S. attorney’s office responded that he had an examination that revealed “no evidence of malignancy” and questioned whether he had cancer at all, Judge Dalton wrote.
This time, the judge quickly granted Mr. Bardell’s request and ordered the Bureau of Prisons to create a court-approved release plan, which was to include details on his transportation to Florida, where his parents lived.
But the bureau disregarded the order, Judge Dalton wrote. It released Mr. Bardell immediately without a plan, charged his parents for his airfare and had him “deposited on the curb of the Dallas/Fort Worth (‘D.F.W.’) airport to fend for himself” — bleeding, incontinent and with the tumor protruding from his abdomen.
Mr. Bardell managed to find a wheelchair and make it onto his flight, aided by fellow passengers, who helped him navigate a transfer in Atlanta, the judge wrote.
His parents were shocked when they met him at the airport in Jacksonville, Judge Dalton wrote. They later described him as “a whittled old man with gray hair.”
Mr. Bardell’s father removed his own shirt and laid it under his son in the car to absorb the blood and excrement as Mr. Bardell’s lawyer rushed him to the hospital.
He died there nine days later. In his order, Judge Dalton included three deathbed photographs of Mr. Bardell, describing his condition as “skin and bones.”
The judge said he regretted that he could take few steps to punish those involved in Mr. Bardell’s treatment besides charging them with contempt, an action he acknowledged was largely symbolic.
The possible consequences were “grossly inadequate to address the callous disregard” shown to Mr. Bardell, the judge wrote, adding that “the B.O.P. as an institution and Warden Zook as an individual should be deeply ashamed” of what happened.
Judge Dalton then charged the Prisons Bureau $200,000 to pay for the special master’s fees. He also ordered the bureau to reimburse Mr. Bardell’s parents for the $494.20 they spent to fly their son home.
Source: nytimes.com
