https://reason.com/2022/10/10/judge-holds-federal-bureau-of-prisons-in-contempt-for-allowing-man-to-waste-away-from-untreated-cancer/?utm_medium=email

A federal judge wrote that the Bureau of Prisons should be "deeply ashamed" of medical delays that resulted in a man dying from treatable cancer.

In a scathing opinion, a federal judge held the Bureau of Prisons (BOP) in civil contempt and levied sanctions against the agency last week for allowing an incarcerated man to waste away from untreated cancer, as well as for willfully ignoring and misleading the court.

U.S. District Judge Roy Dalton for the Middle District of Florida wrote that the BOP should be "deeply ashamed" of how it treated the now-deceased inmate Frederick Bardell. Its actions, he said, were "inconsistent with the moral values of a civilized society and unworthy of the Department of Justice of the United States of America."

Bardell was convicted in 2012 of downloading child pornography from a peer-to-peer file sharing website and sentenced to 151 months in federal prison. But he was not sentenced to death by medical neglect, and he was ostensibly protected by the Eighth Amendment's prohibition on cruel and unusual punishment, as are all incarcerated people, no matter how heinous their crimes. That includes the right to basic health care behind bars.

Nevertheless, the BOP allowed a highly treatable colon cancer to progress until Bardell was terminally ill, all while insisting in court that there was no evidence he had cancer and that he was receiving appropriate, timely care.

In addition to holding the BOP and Kristi Zook, the warden of Seagoville Federal Correctional Institution, in contempt, Dalton ordered the BOP to pay Bardell's parents nearly $500 to reimburse them the airline ticket they purchased to get their dying son home. Dalton also requested that the attorney general and the Office of Inspector General for the Justice Department investigate the circumstances of Bardell's death.

"It takes a deeply rotten culture to make otherwise decent people act as these prison officials did," Kevin Ring, president of the criminal justice advocacy group FAMM, says. "The BOP is in desperate need of independent oversight."

Medical neglect in U.S. prisons and jails is an ongoing constitutional disaster. Earlier this year, federal judges also held the Arizona and Illinois prison systems in contempt for failing to address gruesome medical neglect within their walls. The infamous Rikers Island jail complex in New York City is also under threat of being put in receivership by a federal judge because of chronic corruption, violence, and preventable deaths.

Reason also reported in 2020 on several allegations of fatal medical neglect inside FCI Aliceville, a federal women's prison in Alabama.

Earlier this month, bipartisan legislation was introduced in both the House and Senate that would create an independent ombudsman to act as a BOP watchdog. Criminal justice advocacy groups say Bardell's case is exactly the sort of incident that makes such a position necessary.

Bardell filed a motion for compassionate release—a process through which terminally ill inmates can be afforded the comfort of returning home for their last days—in November of 2020, arguing that he likely had advanced colon cancer. An affidavit from a doctor accompanying his motion said he had "a high likelihood of having cancer of the colon with likely metastasis to the liver."

The BOP and federal prosecutors, in their opposition to Bardell's motion, argued that while Bardell had liver lesions, no one had determined his condition was life-threatening; they assured the judge that Bardell was receiving adequate medical treatment. Dalton denied Bardell's motion.

Bardell filed a second motion for compassionate release in February of 2021, this time with an affidavit from an oncologist. The oncologist wrote that a more than year-long delay in getting Bardell a colonoscopy after he first noticed rectal bleeding "allowed this tumor to progress from a stage III with an average cure rate of 71 percent in November 2019 to a stage IV disease in September 2020."

That delay, the doctor stated, would, "more likely than not, cost Mr. Bardell his life in a matter of weeks to months."

The government again opposed Bardell's motion, arguing, as Dalton summarized it in his opinion, "that it was not even definitive that Mr. Bardell had cancer—let alone terminal cancer."

This time, a disgusted Judge Dalton ordered the BOP to free Bardella as soon as the U.S. Probation Office crafted a proper release plan for him. But the Bureau of Prisons defied Dalton's order and instead immediately released Bardell. The prison directed Bardell's parents to pay nearly $500 for an airline ticket to fly their dying son back home on a commercial flight.

Although he had to be pushed out of prison in a wheelchair, a BOP van dropped Bardell off on a curb outside the Dallas/Fort Worth airport without a wheelchair and left him there. Bardell was weak, as well as bleeding and soiling himself, but he managed to navigate the airports, layovers, and connecting flights through the help of good Samaritans. When he arrived back in Florida to meet his parents, "his father had to take off his own shirt and put it on the seat of [Bardell's lawyer's] car to absorb the blood and feces," Dalton's opinion says.

Bardell died in the hospital nine days later. Pictures accompanying Dalton's order show Bardell severely emaciated.

Dalton's opinion is worth quoting at length:

While the sanctions imposed are remedial in nature and restricted by law, the Court admonishes the BOP and Warden Zook for their blatant violation of a Court Order and sheer disregard for human dignity. The BOP as an institution and Warden Zook as an individual should be deeply ashamed of the circumstances surrounding the last stages of Mr. Bardell's incarceration and indeed his life. No individual who is incarcerated by order of the Court should be stripped of his right to simple human dignity as a consequence. The purposes of incarceration, which include rehabilitation, deterrence, and punishment, do not include depriving a human being of the fundamental right to a life with some semblance of dignity. The treatment Mr. Bardell received in the last days of his life is inconsistent with the moral values of a civilized society and unworthy of the Department of Justice of the United States of America….

The Court is hopeful that in some small way, these proceedings will illuminate the BOP's arrogant—and wholly mistaken—notion that it is beyond reproach and the reach of the Court. It is not. If any institution should embody respect for the Rule of Law, it is an agency that operates under the aegis of the Department of Justice. This Court will do everything in its power to ensure that the BOP is held to account for its demonstrated contempt for the safety and dignity of the human lives in its care.

The BOP did not respond to a request for comment.