Appellate Practice

Dying disbarred lawyer asks federal judge to vacate sentence, after compassionate release is denied

Denied compassionate release from federal prison, a 73-year-old disbarred civil rights lawyer serving a 10-year term for passing messages from an imprisoned client in a terrorism case to his followers in Egypt is taking another approach.

Lynne Stewart, who is dying of cancer in a Texas prison, is asking the judge who presided over her New York case to vacate her sentence, reports the New York Times (reg. req.).

“I do not want to die here in prison—a strange and loveless place. I want to be where all is familiar—in a word, home,” Stewart told U.S. District Judge John Koeltl in a handwritten letter. He originally gave her a 28-month prison term, but was ordered by the New York City-based 2nd U.S. Circuit Court of Appeals to rethink the relatively light sentence.

Stewart’s lawyer, Jill R. Shellow, says in a court filing that having to wear shackles and a belly chain as Stewart is transported for cancer treatment (she is also using a walker), constitute “cruel and unusual and excessive” punishment.

“This is not about the underlying crime,” Shellow told the Times in a phone interview. “It has nothing to do with Lynne’s conduct. This has to do with how we as a society treat human beings who are dying.”

A hearing on the motion to vacate Stewart’s sentence is scheduled Thursday. At an earlier hearing, a prosecutor contended that a Bureau of Prisons decision to deny compassionate release is “unreviewable by a court.”

It appears that Stewart’s prognosis may be a key issue in the matter. A spokesman for the prisons bureau declined to discuss her case but said its policy allows inmates with a “terminal, incurable disease whose life expectancy is 18 months or less” to be considered for compassionate release.

Breast cancer for which Stewart had surgery in 2005 has now spread to her bones, lungs and lymph system, according to her lawyer. But although the prison warden recommended her release, court papers show that the prisons bureau says she is not expected to die within 18 months.

See also: “Ex-Lawyer Lynne Stewart ‘Stunned’ by Enhanced Sentence for Aiding Terrorism’ “Imprisoned former lawyer says federal prison supports her release to fight cancer”

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