Anna AltmanThe Atavist Magazine |May 2023 | 2,008 words (7 minutes)

This is an excerpt from issue no. 139, “The Quality of Mercy.” 

The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blessed:
It blesseth him that gives and him that takes.

—William Shakespeare, The Merchant of Venice

It was February 2019, and Mary Price had rarely seen her office so busy. A wiry woman in her sixties with shoulder-length straight hair, Price is general counsel at FAMM, a nonprofit organization in Washington, D.C. FAMM is an acronym for Families Against Mandatory Minimums, and in addition to opposing severe sentencing, the group broadly advocates for the fair treatment of people in prisons across the United States. FAMM had recently sent out an edition of its newsletter, which supporters knew as the “FAMM Gram.” The response from readers began as a trickle, then became overwhelming, and for good reason: The newsletter outlined historic changes to the U.S. government’s compassionate release process.

Since the mid-1980s, federal prisoners have been able to seek compassionate release for what the law deems “extraordinary and compelling reasons”—including old age, terminal illness, and severe disability—by requesting that the Bureau of Prisons file a motion on their behalf in court. The BOP, however, rejects almost every request it receives. In January 2018, the Department of Justice reported that the BOP had approved less than 10 percent of the compassionate release applications it received over the previous four years, allowing just 306 people to go home. (Within the same time frame, 81 prisoners died waiting for the BOP to respond at all.) The DOJ’s Office of the Inspector General called the process “poorly managed,” with “inconsistent and ad hoc implementation [that] has likely resulted in potentially eligible inmates not being considered for release.”

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For a long time, when the BOP denied a request, a prisoner had no recourse; the bureau’s decision was the final word. That changed in December 2018, following years of advocacy by FAMM and other groups, when Congress passed the First Step Act. Among other criminal-justice reforms, the law allowed a prisoner to file a motion for compassionate release directly with a federal judge if the BOP denied their request or didn’t respond to it within 30 days of receipt. FAMM was eager to share the news and connect eligible individuals with lawyers who could help them. Price knew the organization had to move quickly. “We were very concerned that people who were nearing the end of their lives or very sick would be going before judges without any help,” she said. “We couldn’t just leave these people on their own.”

FAMM’s newsletter was delivered to 40,000 incarcerated individuals via CorrLinks, the federal prison system’s email service. Price felt a thrill of anticipation—“a sense of stepping off into something that was unknown,” as she put it. She knew that sometimes a recipient would print a copy of the newsletter and pass it around the cellblock. Over days, then weeks, Price and her colleagues were inundated with hundreds of phone calls and emails from people seeking compassionate release or inquiring about the process for loved ones behind bars.

Amid the deluge, one inquiry stood out: It was written by a prisoner on behalf of someone else. The sender did not disclose his name. “I am writing this from the ‘Cancer’ floor of FMC Butner,” he wrote, referring to the Federal Medical Center in Butner, North Carolina. The five-story facility provides health care to some of America’s sickest male prisoners; it includes a psychiatric unit, a unit devoted to orthopedic surgery, and a cancer ward. “This is directed at the situation of another patient,” the sender wrote. “He is terminal and is unable to contact you directly.”

The sick man, R. Smith, had lung cancer. As Price later wrote in an article for the American Bar Association, he was in persistent pain and dependent on a feeding tube. With a prognosis of less than 12 months to live, and a sentence lasting much longer for distributing drugs, Smith applied to the BOP for compassionate release. But instead of going home, he was bound for FMC Butner’s hospice ward.

The anonymous person who contacted FAMM said that he had heard Smith crying to his family during a call on the ward pay phone. A longtime recipient of FAMM’s newsletter, the man knew that Smith might now have another way to seek compassionate release. With Smith’s permission, he was using Smith’s CorrLinks account. BOP policy forbade prisoners from using one another’s accounts, and the sender knew he risked punishment for doing so, which is why he left the message unsigned. He asked: Would FAMM consider helping Smith?

Smith’s case was exactly the kind Price had in mind when she drafted FAMM’s newsletter. FAMM connected Smith with an attorney, who began to prepare a legal motion. Meanwhile, according to Price, Smith got sicker. One of his lungs collapsed, and the man communicating with FAMM from inside Butner reported that Smith had been moved to an outside hospital better equipped to treat him. Smith’s lawyer couldn’t get updated information about his condition, but this wasn’t unusual: The BOP can be especially evasive about medical details near the end of a person’s life. “There’s no more cruel part of the BOP than this,” said a former federal defense attorney who spoke on condition of anonymity.

Smith’s lawyer filed an emergency motion in federal court for his release. The court then ordered the BOP to provide an account of Smith’s medical condition by that afternoon. The BOP didn’t meet the deadline, so the judge contacted Smith’s doctor directly. Upon learning how poorly Smith was doing, the judge ordered his release within ten days, as soon as appropriate transport could be arranged. No one could reach Smith in the hospital to deliver the news, so Price sent a message to the person at Butner working on his behalf. She hoped that he would find a way to tell Smith that he didn’t have to die behind bars.

Smith’s case was a turning point for FAMM’s work on compassionate release because it offered a blueprint for helping qualifying individuals. FAMM worked with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and the National Association of Criminal Defense Lawyers to expand the capacity of the Compassionate Release Clearinghouse, a newly created entity that recruited, trained, and supported lawyers representing sick or elderly prisoners requesting early release. In its first year, the Clearinghouse screened some 500 inquiries and placed more than 125 cases with lawyers.

Smith’s case also marked the start of a unique relationship. “Mr. Smith and his family are very lucky to have you in his corner,” Price wrote to the man who’d helped Smith. “We should all have friends like you.”

By then, Price knew the man’s name: Gary Settle. He was slow to tell her much about himself, but he continued to send CorrLinks messages to FAMM as he recruited more people at Butner for the Clearinghouse. In emails he sometimes used the moniker “P/H,” for “patient/helper,” in part to protect himself from BOP censure, and in part because he didn’t want to draw attention to himself. He felt that his personal story—including why he was serving 177 years in prison, along with his own cancer diagnosis—was beside the point.

Settle was born in 1966 in Hawthorne, California, a small city adjacent to South Central Los Angeles. His childhood had what he considered “storybook” elements: loving parents, a brother to horse around with, Little League games, family camping trips. In the summer his mother, Kay, took time off her waitressing job to drive the boys to the beach. Settle was bright—“so smart I could smack him,” Kay said. At age ten, he asked his mom for copies of Shakespeare’s plays, then named his cat Ophelia. “We weren’t rich in money, but we were happy, we had friends, there were always people over,” Settle wrote in a document he calls his “life story,” which he shared with me.

In time, Settle developed a rebellious streak. If Kay told him to stay within a few blocks of the house on his skateboard, he’d ride to busy areas downtown instead. When Settle was 13, his parents bought a farm in Ohio; his father thought the fresh air and country life would be good for the family. “We all had to learn on the fly all the farming tasks—feeding the cows, milking them and shoveling the other substances they produced by the wheelbarrow load,” Settle wrote. “If Green Acres hadn’t already been made, we would have had a great pilot.” It was a major transition for Settle: the unrelenting responsibility of farm work, the unfamiliarity of the local culture. His puka-shell necklace and faded Levi’s didn’t vibe with the rural Ohio style of bib overalls and John Deere hats.

Even so, he quickly made friends. He got into the habit of enlisting his buddies to help with household tasks. “Once, I told him he couldn’t go to a baseball game because he had to help with the chores,” Kay recalled, “and all of a sudden the whole team was weeding.” The town closest to his family’s farm had a single traffic light, two police officers, a barber shop, and “at least ten bars,” according to Settle. There was little to do, so he and his friends drank. Settle recalled being a happy drunk, outgoing and enthusiastic; he boasted that his charm was infectious.

Settle also liked to showboat—driving recklessly, hood surfing, doing motorcycle stunts. “I was not breaking any laws other than traffic ones,” he wrote. “Those I was shattering.” In fact, a juvenile court found him guilty of an offense when he was 17; the case records are sealed, but Settle said that the conviction stemmed from a fistfight he had with a man in his twenties. Looking back, he wondered whether spending his teenage years in a small town with few opportunities contributed to the course his life took.

In 1985, Settle got his high school sweetheart pregnant, and soon they married. At age 20, Settle had expenses and responsibilities, and he grew restless. When he heard about a gig with a construction company in Florida, he decided to move there with $400, two buddies, and no plan—he left his family behind for the time being. He and his friends arrived in time for spring break and blew all their money at Daytona. When Settle got a job, he had to sleep on a picnic table behind a church for a week, until he got his first paycheck.

Despite an inauspicious beginning in his new home, Settle worked hard, and he advanced from laborer to finisher and then to foreman. The construction company had contracts all over the Southeast, so Settle traveled, staying in motels. When the workday was over, he and his crew headed to strip clubs or hung out in bars.

Settle found a house big enough for his family; his wife gave birth to their son, Nathan, back in Ohio, then moved down to join him. In time Settle’s parents decided to relocate to Florida, too. Settle started his own construction company in Orange City, just north of Orlando. But for all that was changing, Settle still liked to spend his free time drinking with friends.

One day, after a few beers, he went to the drive-through window at a bank to deposit a check. He recognized the teller—she was a woman he knew from the local bar scene. “What do you want?” she asked with a smile. He replied, as a joke, “Give me all your money.” The woman bent out of sight and then reappeared holding a plastic container full of neatly stacked bills. “You mean this?” she asked, laughing.

A few weeks later, Settle ran into the woman at a bar, and she brought up their exchange at the bank, saying there had been $35,000 in the box. After their conversation, Settle couldn’t get the number out of his head. All that money, and so close he could have grabbed it.