I know my kindly and oft suffering editor was really hoping that my first column in the Biden era would be an insightful look at the misdeeds of the just-departed president, or perhaps to wax philosophic on the potential and hope I find in the new Biden administration (Ed: no, not really). 

But instead, today I want to talk with you about stuff happening here in Colorado (Ed: yes!) and to offer a thought or two on the notions of justice, compassion, and clemency. Therefore, I am going to talk about a very interesting article I hope you saw in Colorado Politics, which brings questions of justice, fairness, and compassion into sharp relief. 

It seems that federal prison inmates can ask for reductions in their sentences under a 2018 law that lets federal inmates ask a court directly to leave prison based on “extraordinary and compelling reasons.” An example might be a non-violent offender who has served many years and is now ill and is nearing the end of his life. Releasing such an old man could be considered compassionate.

Now, I can almost hear some jaws clenching from those who think of themselves as part of the “law and order” crowd. I confess, I’m a tad more conservative than many of my liberal friends on such issues, but I do believe in second chances and that compassion is a reasonable consideration in such matters. For example, I oppose mandatory sentences on the grounds that judges should have some discretion on sentencing based on the circumstances of particular trials. And I also support parole as a concept, although federal prisoners are not eligible for parole due to the Sentencing Reform Act of 1984. Such prisoners can, however, be granted some credits for good behavior and other sentence-reducing behaviors.

A number of Colorado-based prisoners have requested such release due to the pandemic. About two dozen such requests have been adjudicated and federal judges here have granted only three of them. Previous CP stories have documented the problems created by COVID in jails and prisons. And while I can almost hear the voices of some, declaring that those individuals should not have committed their crimes if they were not prepared to suffer the consequences. 

I get that. 

But I also get that when judges sentence people, those sentences do not include an order that they be subjected to dangerous viruses and that they may die from illness while imprisoned. Just as we do not allow judges to order prisoners be tortured or maimed, presumably we don’t think those who committed crimes should have their health concerns ignored while locked up. You have to be pretty cold hearted to think that those locked up should live Dickensian lives.

So, what do you do?

The compassionate release program allows judges to let some people out of prison if they meet certain criteria. And therein lies the rub. Some advocating for such prisoners argue that judges have been inconsistent in their application of compassion. For some prisoners, age and ill-health seem to have qualified them for early release. But for others in similar situations, those conditions are not enough, absent COVID raging through the particular prison unit at the time.

The judges who have rejected compassionate release have often detailed their reasoning. In one case, a judge noted that the person asking for release, after robbing a bank decades ago, had served 17 years (of a 40-year sentence), had been a model prisoner with an exemplary record, and who had earned 40 college credits with a 4.0 gpa. This prisoner was evaluated as having a near-zero recidivism rate, while currently suffering from serious heart and lung issues. But the judge said no, due to the seriousness of the crime of bank robbery. 

Now, I get it. As a former military cop myself, I was on the other end of the judicial system. Part of me thinks that if you get sentenced to 40 years, well, there’s your time to serve. But another part of my brain wonders what the value is to society of keeping this person in prison. Serving 17 years is not nothing, and given his record and his health concerns, is justice best served by our tax dollars continuing to keep him locked up? 

Maybe, but I confess, I’m not sure.

Aristotle taught that justice is achieved when we treat the same as the same, and the different as different. Confusing, right? To put it more simply, think about bathrooms at major sports venues. Equality means treating men and women exactly the same and providing exactly the same number of bathroom facilities to men and women. But Aristotle would say that, in this regard, men and women are not the same, and that justice would be better achieved by providing more bathroom stalls to women than to men. Justice, right? 

So, what is justice here? Are all prisoners the same? Or are some different? Should one unwavering standard be applied to all, regardless of the circumstances? Or should compassion and justice be considerations? I respectfully argue for the latter.