Madoff Compassionate Release

Case 1:09-cr-00213-DC Document 212 Filed 02/05/20 Page 1 of 27
Brandon Sample
Brandon Sample PLC
P.O. BOX 250
Rutland, VT 05702
Tel: 802-444-4357
E-mail: brandon@brandonsample.com
https://compassionaterelease.com
Vt Bar # 5573
Attorney for Bernard L. Madoff
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
---------------------------------- x
:
UNITES STATES OF AMERICA,
:
Plaintiff, MOTION FOR
: COMPASSIONATE RELEASE
- v - :
BERNARD L. MADOFF, : No.: 1:09-cr-00213-DC-1
Defendant. :
:
---------------------------------- x
I. INTRODUCTION
In 2009, Scotland released the Lockerbie bomber, Abdel Baset Ali al-Megrahi,
on compassionate grounds sparking significant controversy over the use of
compassionate release. After serving approximately eight years in prison for the
bombing of Pan AM flight 103, which killed 270 people, including 189 Americans, the
convicted terrorist was released because he met the criteria for compassionate release
Bernard L. Madoff - Motion for Compassionate Release Page 1 of 27

based on his terminal diagnosis of prostate cancer. Lockerbie Convict Returns to
Jubilant Welcome, New York Times (Aug. 21, 2009),
https://www.nytimes.com/2009/08/21/world/europe/21lockerbie.html. The cases of al-
Megrahi and Bernard Madoff could not be more different—different jurisdictions,
different crimes, different victims; however, the release of the Lockerbie bomber
raises two fundamental questions at the heart of this case: (1) what are the limits of
compassionate release? and (2) when is it appropriate to release a terminally ill
prisoner?
A term of imprisonment that constituted just and proportionate punishment
at the time of sentencing may become disproportionately severe based on changed
circumstances, such as terminal illness. Congress clearly contemplated this scenario
when it enacted the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, 5239
(Dec. 21, 2018), in partial response to the Bureau of Prisons' (“BOP”) minimal use of
the compassionate release program.
When this Court sentenced Bernard Madoff ("Madoff") it was clear that
Madoff’s 150-year prison sentence was symbolic for three reasons: retribution,
deterrence, and for the victims. (Sentencing Transcript, ECF No. 103, at 46:21–
49:13.) Over the past ten years circumstances have changed. This Court must now
consider whether keeping Madoff incarcerated, in light of his terminal kidney failure
and a life expectancy of less than 18 months, is truly in furtherance of statutory
sentencing goals and our society’s value and understanding of compassion.

Madoff does not dispute the severity of his crimes nor does he seek to minimize
the suffering of his victims. Madoff has expressed remorse for his crimes. Now, after
over ten years of incarceration and with less than 18 months to live, Madoff humbly
asks this Court for a modicum of compassion.
Madoff presents “extraordinary and compelling reasons” for compassionate
release and the BOP recognizes that Madoff meets the criteria for a reduction in
sentence based on his end-stage renal disease. However, Madoff disagrees with the
BOP’s denial of his compassionate release request because a reduction in sentence
would not minimize the severity of his offense—his circumstances fall within the
Sentencing Commission’s standards for a sentence reduction, and consideration of
the 18 U.S.C. § 3553(a) factors do not outweigh the indisputable fact that Madoff is
dying or that he has already been punished significantly for his crimes.
Accordingly, for the reasons argued herein, the Court should grant Madoff
compassionate release.
II. BACKGROUND
On December 21, 2018, the President signed the First Step Act (“FSA”) into
law, removing a major obstacle from judicial review of sentences to determine
whether “extraordinary and compelling reasons” exist to permit a sentence reduction
that is “sufficient, but not greater than necessary,” under 18 U.S.C. § 3553(a). First
Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018). Under the
FSA, this Court is afforded jurisdiction to make the § 3553(a) determination of

whether Madoff’s over ten years in prison is “sufficient, but not greater than
necessary” to accomplish the goals of sentencing.
A. History of Compassionate Release
Congress enacted the current compassionate release statute, 18 U.S.C. § 3582,
as part of the Comprehensive Crime Control Act ("CCCA") of 1984. Section 3582(c)
states that a district court can modify a final term of imprisonment after
consideration of the § 3553(a) factors if “extraordinary and compelling reasons
warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). In 1984, Congress conditioned
the reduction of sentences on the BOP Director moving for the reduction; absent a
BOP motion, sentencing courts had no authority to modify a prisoner's sentence for
extraordinary and compelling reasons. Id. Congress never defined what constitutes
an “extraordinary and compelling reason” for resentencing under § 3582(c), but the
legislative history indicates that Congress expected courts to grant relief pursuant to
the statute in appropriate cases.
One of Congress’s initial goals in passing the CCCA was to abolish federal
parole and create a “completely restructured guidelines sentencing system.” S. Rep.
No. 98-225, at 52, 53, n.196 (1983). Yet, recognizing that parole historically played a
key role in responding to changed circumstances, the Senate Committee stressed how
some individual cases may still warrant a second look at resentencing, including
“cases of severe illness, cases in which other extraordinary and compelling
circumstances justify a reduction of an unusually long sentence.” Id. at 55. Rather
than having the parole commission review every federal sentence focused only on an

offender's rehabilitation, Congress decided that § 3582(c) could and would enable
courts to decide, in individual cases, if “there is justification for reducing a term of
imprisonment.” Id. at 56.
Congress intended for the situations listed in § 3582(c) to act as “safety valves
for modification of sentences” to enable sentence reductions when justified by various
factors that previously could have been addressed through the (now abolished) parole
system. Id. at 121. This safety valve would “assure the availability of specific review
and reduction to a term of imprisonment for ‘extraordinary and compelling reasons’
and [would allow courts] to respond to changes in the guidelines.” Id. (alterations
added). Noting that this approach would keep “the sentencing power in the judiciary
where it belongs,” rather than with the U.S. Parole Commission, the statute
permitted “later review of sentences in particularly compelling situations.” Id.
In sum, Congress via § 3582(c)(1)(A) gave federal sentencing courts the
equitable power to correct sentences that—while lawful when originally imposed—
no longer make sense.
B. The U.S. Sentencing Commission Concluded That §

3582(c)(1)(A)'s “Extraordinary and Compelling Reasons"
Includes, But Is Not Limited To, Terminally Ill, Elderly, or
Family Circumstances.
Congress initially delegated the responsibility for determining what
constitutes “extraordinary and compelling reasons” to the U.S. Sentencing
Commission. See 28 U.S.C. § 994(t) (“The Commission . . . shall describe what should
be considered extraordinary and compelling reasons for sentence reduction, including
the criteria to be applied and a list of specific examples.”). Congress provided only one

limitation to that delegation of authority: “[r]ehabilitation of the defendant alone
shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t).
The Commission initially neglected its duty, leaving the BOP to fill the void
and develop its own standards for extraordinary and compelling reasons warranting
resentencing under § 3582(c)(1)(A). The Commission finally acted in 2007,
promulgating a policy that extraordinary and compelling reasons include (A) medical
conditions of the defendant; (B) age of the defendant; (C) family circumstances; and
(D) “other reasons.” U.S.S.G. § 1B1.13(1); U.S.S.G. § 1B1.13, Application Note 1(A).
After a negative DOJ Inspector General report found that the BOP rarely
moved courts for a § 3582(c)(1)(A) modification—even for prisoners who met the
objective criteria—the Commission amended its policy statement, admonishing the
BOP to file motions for compassionate release whenever a prisoner was found to meet
the criteria in U.S.S.G. § 1B1.13. U.S. DOJ Office of the Inspector General, The
Federal Bureau of Prisons’ Compassionate Release Program (Apr. 2013); U.S.S.G. §
1B1.13, App. Note 4; see United States v. Dimasi, 220 F. Supp. 3d 173, 175 (D. Mass.
2016) (discussing the progression from the OIG report to new “encouraging”
guidelines).
C. Congress Changed the Process for Compassionate Release

Through the First Step Act Based on Criticism of the BOP's
Inadequate Use of Its Authority, Returning to the Federal
Judiciary the Authority to Reduce Sentences For
“Extraordinary and Compelling Reasons.”
Only the BOP could move for a sentence reduction under § 3582(c)(1)(A) before
Congress enacted the FSA. See P.L. 98-473 (H.J. Res. 648), P.L. 98-473, 98 Stat. 1837

(Oct. 12, 1984). Even if a federal prisoner qualified under the Sentencing
Commission’s definition of extraordinary and compelling reasons, absent a BOP
motion, the sentencing court had no authority to reduce the sentence. This led to
several problems.
For example, the Department of Justice’s Office of the Inspector General (OIG)
found that the BOP failed to provide adequate guidance to staff on the criteria for
compassionate release, failed to set timelines for reviewing compassionate release
requests, failed to create formal procedures for informing prisoners about
compassionate release, and failed to generate a system for tracking requests. See The
Federal Bureau of Prisons Compassionate Release Program, April 2013. OIG # I-2013-
006 at i, iv. 1 The OIG concluded that “FBOP does not properly manage the
compassionate release Program, resulting in inmates who may be eligible candidates
for release not being considered.” Id.; see, generally, Stephen R. Sady & Lynn
Deffebach, Second Look Resentencing Under 18 U.S.C. § 3582(c) as an Example of
Bureau of Prisons Policies in Overincarceration, 21 FED. SENT. RPTR. 167 (Feb.
2009).
Congress heard those complaints. On December 21, 2018, Congress passed the
FSA, which transformed the process for compassionate release under § 3582(c)(1)(A).
Congress labeled these changes, “Increasing the Use and Transparency of
Compassionate Release.” 164 Cong. Rec. H10346, H10358 (2018) (emphasis added).
1 The OIG report is accessible at https://oig.justice.gov/reports/2013/e1306.pdf

Pursuant to the FSA, this Court has discretion to reduce the term of
imprisonment imposed in this case based on § 3582(c)(1)(A)(i) if it concludes that: (1)
Madoff has “fully exhausted all administrative rights to appeal a failure of the Bureau
of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the
receipt of the request by the warden of the defendant’s facility, whichever is earlier”;
(2) “extraordinary and compelling reasons warrant” a reduction in sentence; (3)
consideration of “the factors set forth in section 3553(a)”; and (4) “such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(1)(A)(i).
The U.S. Sentencing Commission defines “extraordinary and compelling
reasons” via Commentary to U.S.S.G. § 1B1.13. For instance, Application Note 1 to §
1B1.13 states:
1. Extraordinary and Compelling Reasons.—Provided the

defendant meets the requirements of subdivision (2), extraordinary and
compelling reasons exist under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e.,

a serious and advanced illness with an end of life
trajectory). A specific prognosis of life expectancy (i.e., a
probability of death within a specific time period) is not
required. Examples include metastatic solid-tumor cancer,
amyotrophic lateral sclerosis (ALS), end-stage organ
disease, and advanced dementia.
(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive

impairment, or

(III) experiencing deteriorating physical or mental health

because of the aging process,
that substantially diminishes the ability of the defendant

to provide self-care within the environment of a
correctional facility and from which he or she is not
expected to recover.
...
(D) Other Reasons.—As determined by the Director of the

Bureau of Prisons, there exists in the defendant’s case an
extraordinary and compelling reason other than, or in
combination with, the reasons described in subdivisions (A)
through (C).
U.S.S.G. § 1B1.13, comment. n.1(A)(i)-(ii) & (D) (emphasis added).
While the Sentencing Commission’s Policy Statement on sentence reductions
lists categories of “extraordinary and compelling reasons” there is no restrictive list
or combination of factors required to warrant release. U.S.S.G. § 1B1.13, comment.
n.1(A)–(D). Moreover, the reason for seeking a reduction in sentence “need not have
been unforeseen at the time of sentencing in order to warrant a reduction in the term
of imprisonment.” U.S.S.G. § 1B1.13, Appl. Note 2.
In light of the FSA, Congress intended the judiciary would not only take on the
role the BOP once held as the functional adjudicator of compassionate release
requests, but also to grant sentence reductions on the full array of grounds reasonably
encompassed by the “extraordinary and compelling” standard set forth in the statute.
III. PROCEDURAL HISTORY
On March 12, 2009, Madoff pleaded guilty to 11 counts in connection with his
fraudulent investment scheme involving billions of dollars. (Plea Allocution, ECF No.

50; Minute Entry for March 12, 2009 proceedings.). On June 29, 2009, this Court
sentenced Madoff to the maximum allowable sentence—150 years in prison.
(Judgment, ECF No. 100.) Madoff is currently incarcerated at FMC Butner; he is 81
years old.
IV. MADOFF HAS EXHAUSTED HIS ADMINISTRATIVE REMEDIES
On September 24, 2019, Madoff submitted a Request for Compassionate
Release to the Warden of FMC Butner, requesting the BOP move under 18 U.S.C. §
3582(c)(1)(A) for a reduction in sentence. 2 (Letter to Warden, attached as Exhibit A.)
Assistant Director/General Counsel of BOP, Ken Hyle, denied Madoff’s request on
December 5, 2019. (Hyle Letter, attached as Exhibit B.) In its denial, the BOP
expressly acknowledged that Madoff’s condition (end-stage renal disease) “is
considered terminal with a life expectancy of less than 18 months.” (Ex. B.) Moreover,
the BOP recognized that Madoff “meets the criteria for [reduction in sentence] under
section 3(a).” (Ex. B.) However, the BOP denied Madoff’s request because “in light of
the nature and circumstances of his offense, his release at this time would minimize
the severity of his offense.” (Ex. B.)
Madoff has fully exhausted his administrative remedies because the BOP did
not respond to his September 24, 2019, request for compassionate release within 30
days. 18 U.S.C. § 3582(c)(1)(A). Pursuant to the authority provided by the FSA,
Madoff now brings his request for a sentence reduction directly to this Court.
2 In June 2019, Madoff requested compassionate release without the assistance of counsel,
which was denied in May 2019. The September 2019 submission attached as Exhibit A is Madoff’s
renewed request.

V. ARGUMENT
A. BOP Concedes Madoff Is Terminally Ill
Madoff has end-stage renal disease and other chronic, serious medical
conditions, including hypertension, cardiovascular disease, esophageal reflux,
hyperparathyroidism, bladder neck obstruction, and insomnia. (Ex. B; BOP
Reduction in Sentence/Compassionate Release Comprehensive Medical Summary
attached as Exhibit C.) The BOP concluded that Madoff’s “condition is considered
terminal with a life expectancy of less than 18 months.” 3 (Ex. B, C.) Based upon the
BOP’s determination and the attached medical support, there can be no dispute that
Madoff’s medical condition is an “extraordinary and compelling” reason qualifying
him for compassionate release. (See Ex. B) (setting forth the BOP’s recognition of
Madoff’s terminal condition).
B. Madoff Suffers From End-Stage Renal Disease And Has Less

Than 18 Months To Live.
Madoff has chronic kidney failure that has progressed to end-stage renal
disease. He now has less than 18 months to live. (BOP Medical Records attached as
Exhibit D, at 34; Ex. C.) A diagnosis of kidney disease means that a person’s “kidneys
are damaged and cannot filter blood the way they should. . . . causing waste to build
up in the body.” Kidney Disease Statistics for the United States, National Institute of
Diabetes and Digestive and Kidney Diseases, https://www.niddk.nih.gov/health-
information/health-statistics/kidney-disease (last visited Jan. 24, 2020). Kidney
3 The BOP determined that Madoff has less than 18 months to live in September 2019. (Ex. C).
Over four months have passed since that finding, leaving Madoff with only 14 months to live—under
a best case scenario.

disease can be fatal, and “[e]ach year, kidney disease kills more people than breast or
prostate cancer.” Id. Sufferers of end-stage renal disease like Madoff require dialysis
or a kidney transplant to stay alive; in the alternative, people may forgo dialysis or a
transplant and opt for conservative care to manage symptoms until their death. Mayo
Clinic, End-Stage Renal Disease, https://www.mayoclinic.org/diseases-
conditions/end-stage-renal-disease/symptoms-causes/syc-20354532 (last visited Jan.
24, 2020).
Symptoms of end-stage renal disease include: nausea, vomiting, loss of
appetite, fatigue and weakness, sleep problems, changes in urination, decreased
mental sharpness, muscle twitches and cramps, swelling of feet and ankles,
persistent itching, chest pain, shortness of breath, and hypertension. Id. As discussed
in more detail below, Madoff exhibits most of these symptoms.
Kidney damage has significant potential complications, including stroke, heart
attack, pulmonary edema, hyperkalemia, cardiovascular disease, weakened bones,
anemia, central nervous system damage, decreased immune response (which can
increase potential for infection), and pericarditis. Id.
Madoff was admitted to the Comfort Care Unit for palliative care for end-stage
renal disease on July 18, 2019. (Ex. C; Ex. D, at 200–204, 206.) The goal of palliative
care is to make a patient as comfortable as possible for their remaining life, generally
through pain and symptom management. What Are Palliative Care and Hospice
Care?, National Institute on Aging, https://www.nia.nih.gov/health/what-are-
palliative-care-and-hospice-care (last visited Jan. 26, 2020).

The BOP Reduction in Sentence/Compassionate Release Comprehensive
Medical Summary describes Mr. Madoff’s condition as follows:
He has chronic kidney failure that has progressed to end stage renal
disease. His most recent glomerular filtration rate (GFR) was 4 on
8/30/19 (a normal GFR is 60). At this level of renal failure, the kidneys
can no longer filter body waste. He has refused dialysis. 4 His renal
disease also causes secondary hyperparathyroidism, anemia in chronic
kidney disease, and is likely the cause of the [sic] his worsening,
widespread itching. Untreated end stage renal disease eventually
causes death from buildup of unfiltered body waste.
(Ex. C.) The BOP also concluded that Mr. Madoff has a life expectancy of less than 18
months. (Ex. C.) Madoff is experiencing complications, including acid build up, which
causes muscle and joint pain, itching, and fatigue, weakness, shortness of breath,
sleep disturbances, itching, and edema. (Ex. D, at 146, 155–156; Ex. C.).
C. Madoff Suffers From Numerous Other Serious Medical

Conditions That Have Worsened And Make Prison Overly
Difficult For Elderly Inmates.
In addition to end-stage renal disease, Madoff suffers from other multiple
serious medical conditions. His physical health is also deteriorating because of the
aging process. These conditions will continue to worsen, making it difficult for him to
provide self-care. Madoff’s additional diagnoses include:
• Atherosclerotic cardiovascular disease. (Ex. B; Ex. C; Ex. D, at 149.) Madoff’s
cardiac conditions are managed with medication. He has a history of non-ST
elevation myocardial infarction diagnosed December 2013; a cardiac
catheterization procedure showed 99% ulcerated plaque mid-left circumflex
4 While Madoff previously refused dialysis, Madoff began dialysis in December 2019.

treated with a bare metal stent and an ejection fracture of 40–45% (normal EF
55–70%). (Ex. B; Ex. C; Ex. D, at 148–150.)
• Hypertension, managed with medication, but “[n]ot well controlled.” (Ex. B; Ex.
C; Ex. D, at 146.) He requires blood pressure checks every two weeks. (Ex. D,
at 143.)
• Esophageal reflux, managed with medication. (Ex. B; Ex. C.)
• Hyperparathyroidism, which is a complication of end-stage renal disease. (Ex.
B; Ex. C; Ex. D, at 149.) This condition is managed with medication and
requires regular monitoring through lab work.
• Hyperlipidemia, managed with medication and requiring regular lab
monitoring. (Ex. B; Ex. C.)
• Bladder neck obstruction. (Ex. B; Ex. C.)
• Insomnia, managed with medication. (Ex. C; Ex. D, at 58–59.)
• Shortness of breath on exertion and at night. He has to walk slowly and rest
and he has oxygen to use as needed. (Ex. D, at 33–35, 148.)
• Adjustment disorder with mixed anxiety, managed with medication. (Ex. D, at
33, 58–59.)
• Back pain, managed with medication. Madoff has pain in his lower back rated
an 8 out of 10, which is exacerbated by standing up. (Ex. D, at 114, 136.)
• Leg cramps, managed with medication. (Ex. D, at 57, 136.)
• Pruritus (itching), managed with medication. (Ex. D, at 78–79.)

Madoff is taking the following prescription medications: amlodipine
(hypertension), acetaminophen (back pain); aspirin (hyperlipidemia); atorvastatin
(cholesterol); diphenhydramine (itching); diltiazem (hypertension); calcitriol (kidney
failure); fluticasone nasal spray (allergies); ranitidine (GERD), sodium bicarbonate
(kidney failure); trazodone (palliative care). (Ex. D, at 114, 163–167.) He also uses
oxygen to alleviate his shortness of breath. (Ex. D, at 32.)
Madoff experiences frequent fatigue, weakness, and exhaustion; his gait is
unstable, and he has pain and cramping in his thighs, hips, and knees. (Ex. D, at 136,
145.) He previously used a 4-wheel walker to ambulate and is a low to moderate fall
risk. (Ex. D, at 139.) He now is confined to a wheelchair. He has a back brace, bed
wedge, medical shoes, a lower bunk, and he is authorized to have an inmate
companion. (Ex. D, at 161, 255.)
Madoff experiences leg cramps at night, which wake him frequently and he
“[r]arely sleeps more than 1 hour.” (Ex. D, at 142, 145.) He also has pitting edema.
(Ex. D, at 145.) He experiences congestion and shortness of breath at night requiring
the use of supplemental oxygen. (Ex. D, at 33.) He also reports shortness of breath
with mild exertion requiring him to walk slowly and rest. (Ex. D, at 148.) He requires
moderate and regular assistance or supervision with grooming. (Ex. D, at 185.)
The nature of Mr. Madoff’s serious medical conditions coupled with the effects
of incarceration will only cause his overall physical condition to worsen as his
illnesses progress and his death becomes ever more inevitable.

D. End-Stage Renal Disease Is Expressly Recognized As An

“Extraordinary And Compelling Reason” For Compassionate
Release And BOP Admits That Madoff’s Condition Qualifies Him
For A Reduction In Sentence.
Madoff’s diagnosis of end-stage renal failure falls squarely within the
definition of “extraordinary and compelling reasons” as expressly provided in the U.S.
Sentencing Guideline § 1B1.13 Policy Statement. Specifically, Application Note
1(A)(i) to § 1B1.13 lists specific examples of medical conditions that qualify as
“extraordinary and compelling reasons” and include “end-stage organ disease.”
U.S.S.G. § 1B1.13, App. N. 1(A)(i).
In addition, the BOP concluded that Madoff’s condition was terminal and that
he has a life expectancy of less than 18 months. (Ex. B; Ex. C.) Therefore, the
Government cannot deny that Madoff has met his burden of demonstrating an
extraordinary and compelling reason for compassionate release because the BOP
admits that Madoff is terminally ill. (Ex. B; Ex. C.)
Since Madoff has exhausted his administrative remedies and presented an
extraordinary and compelling reason for a reduction in sentence, this Court’s decision
should turn on its analysis of the § 1B1.13 policy statement and consideration of the
§ 3553(a) factors.
E. Reducing Madoff’s Sentence Would Be Consistent With The §

1B1.13 Policy Statement.
Section 3582(c)(1)(A) requires all reductions in sentence be “consistent with
applicable policy statements issued by the Sentencing Commission." U.S.S.G. §
1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A).

Meaning, in addition to providing an extraordinary and compelling reason
warranting a sentence reduction (which has already been established by the BOP)
and the consideration of § 3553(a) factors, the Court must determine that Madoff “is
not a danger to the safety of any other person or to the community, as provided in 18
U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2).
It is evident from a review of the § 3142(g) factors that Madoff presents no
danger to any person or the community. He has no history of violence, he has less
than 18 months to live, and the public nature of his crimes guarantee that he would
be unable to participate in financial or investment-related activities ever again.
Furthermore, it is important to note that the BOP did not deny Madoff’s
compassionate release request on the basis that he posed a danger to the community.
(1) Compassionate Release Granted in

United States v. Ebbers
Over the past year, courts across the country have grappled with applying the
changes made by the First Step Act to motions for compassionate release. However,
a recent decision from the Southern District of New York, United States v. Ebbers, is
particularly instructive in this case.
On December 18, 2019, the Honorable Valerie Caproni granted compassionate
release to Bernard Ebbers. United States v. Ebbers, 2020 U.S. Dist. LEXIS 3746
(S.D.N.Y. Jan. 8, 2020). Bernard Ebbers was5 the former CEO of WorldCom, Inc. who
5 Ebbers was released from BOP custody on December 21, 2019. Ebbers is reported to have
died on February 2, 2020, 44 days after he was granted compassionate release.
https://www.npr.org/2020/02/03/802288166/bernard-ebbers-telecom-ceo-sent-to-prison-in-accounting-
scandal-dies

was sentenced to 25 years in prison for securities fraud that resulted in losses
estimated around $2 billion. Id. at *1. “As a result of his crimes, investors and
shareholders lost hundreds of millions, perhaps billions of dollars, and thousands of
WorldCom employees lost their jobs and savings.” Id. Ebbers moved for
compassionate release under the First Step Act arguing that he presented
extraordinary and compelling reasons for a reduction based on his age and serious
health issues under U.S.S.G. § 1B1.13, Application Note 1(B), “Age of Defendant.” Id.
at *13. The court ultimately concluded that his medical conditions were
“extraordinary and compelling reasons” and that he posed no risk to society, so a
sentence reduction would be compatible with the policy statements. Id. at *25. Lastly,
the court concluded that the § 3553(a) factors “do not outweigh its finding that
Ebbers’s deteriorating health and old age qualify him for compassionate release.” Id.
at *25.
Ebbers’s present poor health does not reduce his culpability or diminish
the harm he caused. His crimes were egregious; but having been
incarcerated from aged 65 to aged 78, during what should have been his
golden years, and having reached a point where his quality of life is quite
low, releasing Ebbers will not prevent him from being adequately
punished nor will it discount the seriousness of his offense or diminish
the message that his crimes were unacceptable. It also will not prevent
his sentence from serving as a general deterrent to white-collar criminal
conduct. Thirteen years of incarceration—up to the point of approaching
death—is not a slap on the wrist; it seems likely that no one who might
be considering committing accounting fraud would view his sentence as
lenient. Far from it—Ebbers has essentially served the life sentence that
the sentencing court predicted it had imposed.
Id.

(2) Nature and Circumstance of Offense Charged, 18 U.S.C. §

3142(g)(1).
Madoff’s offenses were, in the aggregate, characterized by fraud. These were
non-violent offenses and Mr. Madoff was a first-time felony offender. (Judgment, ECF
No. 100; PSR ¶¶ 129–130.)
(3) Madoff’s History and Characteristics, 18 U.S.C. §

3142(g)(3).
Mr. Madoff has been married for over 60 years to his wife Ruth; they have two
sons, who are now deceased. (PSR ¶¶ 142–143.) Prior to his incarceration, Madoff
was active in his community and made significant contributions to charities. He has
no history of drug or alcohol abuse. (PSR ¶¶ 173–174.) Except for the offenses in this
case, Mr. Madoff has no other felony convictions. (PSR ¶¶ 129–130.)
Mr. Madoff is an 81-year old man facing significant health issues who has less
than 18 months to live. (Ex. B; Ex. C.) His weakened and declining physical condition
is such that he would pose no danger to anyone. He will be unable to work because of
his failing health and physical conditions.
Madoff forfeited all his assets; he will financially support himself through
Social Security and Medicare benefits. If released, he will live with a friend. 6
(4) Madoff’s Release Would Pose No Danger to Any Person or

the Community, 18 U.S.C. § 3142(g)(4).
Madoff was a first-time felony offender for non-violent offenses. (Judgment,
ECF No. 100; PSR ¶¶ 129–130.) He has no history of violence and his failing physical
6 Madoff does not identify the name of the friend or their whereabouts in this public filing for
privacy reasons.

health prevent him from posing any danger—he requires a walker to ambulate;
experiences weakness, fatigue, and insomnia; uses supplemental oxygen for
shortness of breath; and he is not expected to be alive in 18 months.
Moreover, the SEC barred Mr. Madoff from associating with any investment
or brokerage firm. (PSR ¶ 179.) The highly public nature of Madoff’s crimes and the
SEC’s ban prohibit him from engaging in any financial or investment-related
activities in the future. His remaining months on earth will be spent receiving
palliative care and managing the symptoms of his terminal illness—he will not be
participating in any fraudulent investment schemes. Despite Madoff’s terminal
condition, if the Court is concerned about any risk to the public it can manage those
risks by fashioning appropriate terms of his supervised release. See 18 U.S.C. §
3142(g) (noting conditions of release can mitigate danger to the community); see also,
United States v. Gray, 2019 U.S. Dist. LEXIS 160593, at **12–13 (S.D. Ind. Sept. 20,
2019) (finding that post-release supervision would serve “as a sanction and general
deterrent, appropriately recognizing the seriousness” of the defendant’s conduct).
Perhaps most telling is the BOP’s rationale for denying Mr. Madoff’s
compassionate release request. The BOP denied Madoff’s request for compassionate
release because it concluded that his release “would minimize the severity of his
offense.” (Ex. B.) The BOP did not deny his request because they believed he would
pose a danger to people or the community. Given Madoff’s physically weakened state,
terminal illness diagnosis, and his inability to ever again participate in the finance

and investment industry, granting Madoff’s request for compassionate release would
be consistent with the § 1B1.13 Policy Statement—he poses no danger.
F. With Full Consideration of the § 3553(a) Factors, Time Served

Constitutes A Sentence Sufficient but Not Greater Than
Necessary to Accomplish the Goals of Sentencing For Madoff.
A review of the § 3553(a) factors, to the extent that they apply, weigh in favor
of a reduction in sentence—compassionate release would not undermine the goals of
Madoff’s original sentence.
(1) Nature and Circumstances of the Offense and History

and Characteristics of Madoff, § 3553(a)(1).
As previously stated, Madoff’s offenses were fraudulent in nature. These were
non-violent offenses and Madoff is a first-time offender. (Judgment, ECF No. 100;
PSR ¶¶ 129–130.)
Since Madoff’s sentencing, his “history and characteristics” have changed.
Madoff is now 81-years old and his medical conditions have worsened significantly
such that he now has end-stage renal disease and has less than 18 months to live.
His condition will only continue to worsen and, despite receiving palliative care, his
dependence on others for assistance with activities of daily living and need for
additional medical and staffing resources will only increase.

(2) Compassionate Release Would Not Diminish the

Seriousness of the Offense, Respect for the Law, and Goal
of Providing Just Punishment, § 3553(a)(2)(A).
Similar to the observations made by the Ebbers court, Madoff’s terminal illness
does not reduce his culpability or diminish the harm he imposed on his victims. 7 See
Ebbers, 2020 U.S. LEXIS 3746, at *25. Madoff has been incarcerated since he was 71
years old—he is now 81 years old and he has spent “what should have been his golden
years” incarcerated. Id. His complicated medical conditions have significantly
diminished his quality of life and he is expected to die in less than 18 months. As in
Ebbers, releasing Madoff does not prevent him from being adequately punished—he
has spent the last ten years in prison, most of the time being seriously ill, and his
incarceration has led “up to the point of approaching death.” Id. That “is not a slap
on the wrist . . . [he] has essentially served the life sentence that the sentencing court
predicted it had imposed.” Id. Reducing Madoff’s sentence would bring about the
same result: Madoff has spent ten years in prison and, if released, would still be under
significant supervision and spend his final days battling illness. Even with release,
Madoff still will serve a functional life sentence.
Madoff cannot impose any more harm and the “compassionate thing to do in
this case is to release [Madoff] early, consistent with the intent of Congress when it
passed the First Step Act.” See id., at *26 (granting Ebbers’s request for
compassionate release).
7 Furthermore, "[a]s of January 24, 2020, the Securities Investor Protection Act (SIPA)
Trustee has recovered or reached agreements to recover approximately $14.328 billion. This recovery
far exceeds any prior restitution effort related to Ponzi schemes both in terms of dollars and
percentage of stolen funds recovered." https://www.madofftrustee.com/recoveries-25.html

(3) Compassionate Release Would Not Diminish the Deterrent

Effect Madoff’s Sentence Has on the Criminal Conduct of
Others, § 3553(a)(2)(B).
Madoff’s 150-year sentence was broadcast around the world, and Bernie
Madoff was, and continues to be, a household name. In fact, several movies featuring
high-profile actors have been made about Madoff in recent years, almost ten years
after his imprisonment. Mehler & Krantz, No Movie Could Capture the Crazy Details
of Bernie Madoff’s Story, The Atlantic (May 20, 2017), available at
https://www.theatlantic.com/business/archive/2017/05/madoff-hbo-wizard-of-lies-
abc/527343/ (last visited Jan. 24, 2020). Madoff’s arrest transformed the investment
industry and his sentence communicated, in no uncertain terms, that white collar
criminals will face significant terms of imprisonment proportional to their crimes.
Granting Madoff compassionate release does not diminish the message
communicated by his 150-year sentence; Madoff has served ten years in prison while
battling a terminal illness and is now facing the harsh reality that he has less than
18 months to live.
(4) The Public Will Not Be Harmed by Further Crimes, §

3553(a)(2)(C).
As discussed previously, Madoff is physically and practically incapable of
imposing further harm on the public. His end-stage renal disease and other
debilitating medical conditions have left him in a weakened state and the SEC has
barred him from working in the investment and finance industry. While it would
seem impossible for Madoff to harm the public by committing further crimes, if the

Court has doubts it is free to fashion appropriate conditions to mitigate any risk. 18
U.S.C. § 3142(g) (noting conditions of release can mitigate danger to the community).
Additionally, incarcerated individuals 50 years and older have a 15% re-arrest
rate, compared to 41% re-arrest rate for the general federal prison population.”
https://www.schatz.senate.gov/download/compassionate-release-letter-2017 (last
accessed September 10, 2019). Madoff poses no risk of reoffending.
(5) A Sentence Reduction Would Afford Madoff Medical Care

in the Most Effective Manner, § 3553(a)(2)(D).
Madoff’s health has and will continue to deteriorate, and he will require more
assistance physically and medically leading up to his death. The Court must consider
the need “to provide [Madoff] with . . . medical care . . . in the most effective manner.”
18 U.S.C. § 3553(a)(2)(D).
The BOP might claim that it is capable of providing adequate medical care and
treatment for Madoff, but that claim seems unlikely given the complexities associated
with Madoff’s many conditions, his increasing need for care, and the significant issues
with the BOP’s provision of health care services. The BOP is plagued with medical
staffing shortages, treatment delays, and medical personnel recruiting issues. Erica
Zunkel, 18 U.S.C. § 3553(a)’s Undervalued Sentencing Command: Providing a
Federal Criminal Defendant with Rehabilitation, Training, and Treatment in “the
Most Effective Manner,” 9 NOTRE DAME JOURNAL OF INT’L LAW 49, 61 (2019).
Granting Madoff compassionate release would allow him to receive end-of-life
care in the community, which would be more efficient, timely, and less burdensome
on the BOP. Compassionate release and treatment outside of a correctional

environment is not only the most effective manner of treatment, it would also be the
most efficient and least expensive.
Even if the BOP can provide competent care, Madoff’s conditions are
“extraordinary” under § 3553(a)(2)(D) and he is entitled to “the most effective
manner” of treatment. In the Eighth Circuit case of United States v. Wadena, 470
F.3d 735 (8th Cir. 2006), the court recognized that while the defendant could obtain
dialysis treatments and medical care in prison, “[18 U.S.C.] § 3553(a)(2)(D) explicitly
states that the effective provision of necessary medical care is an appropriate factor
for the district court’s consideration in sentencing.” Id. at 739. Moreover, “[t]he
district court had the discretion to decide that it would be more efficient and effective
for [the prisoner] to receive treatment from his current healthcare provider.” Id.
In this case, the most efficient and effective treatment for Madoff is outside of
prison where he can receive support and comfort from the remaining loved ones he
has during his final months.
(6) Relevant Policy Statement Favors Compassionate

Release, § 3553(a)(5).
Granting Madoff compassionate release would be consistent with U.S.S.G. §
1B1.13. Reducing Madoff’s sentence would not undermine the goals of sentencing nor
the symbolism this Court's original sentence intended. Rather, affording Madoff
compassionate release provides a different form of symbolism—that an 81-year old
terminally ill man, who no longer poses a danger to society, is not unable to receive
mercy and compassion during his final months on this earth.

VI. CONCLUSION
Madoff does not dispute the severity of his crimes nor does he seek to minimize
the suffering of his victims. Rather, Madoff presents extraordinary and compelling
reasons in support of compassionate release as embodied by the First Step Act. A
reduction in Madoff’s sentence is consistent with the sentencing guidelines, and
Madoff poses no danger to society. Moreover, granting compassionate release would
not diminish the goals of sentencing under § 3553(a). Because Madoff satisfies the
requirements for compassionate release, it is unnecessarily retributive and punitive
to continue to incarcerate Madoff, an 81-year old man who has spent over ten years
in prison, for the final months of his life.
Accordingly, for all of the above reasons, the Court should grant this motion
and reduce Madoff's sentence to time served.
Respectfully submitted,
By: /s/Brandon Sample

Brandon Sample
Brandon Sample PLC
P.O. BOX 250
Rutland, VT 05702
Tel: 802-444-4357
E-mail: brandon@brandonsample.com
https://compassionaterelease.com
https://sentencing.net
https://2255motion.com
https:clemency.com
https://brandonsample.com
Vt Bar # 5573

CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served this 5th day
of February, 2020, via CM/ECF on all counsel of record.
/s/Brandon Sample
Brandon Sample

Case 1:09-cr-00213-DC Document 212-1 Filed 02/05/20 Page 1 of 4
Exhibit A
BRANDON SAMPLE
ATTORNEY A T L AW

Via e-mail to: BUH/ExecAssistant@bop.gov
and CMRR 7018-2290-0000-4806-5538
September 24, 2019
Warden, FMC Butner

P.O. BOX 1600
BUTNER, NC 27509
Re: Mr. Bernard Madoff # 61727-054

Request for Compassionate Release
Dear Warden:
I am writing on behalf of my client, Mr. Bernard Madoff, who is

incarcerated at your facility. Mr. Madoff is 81 years old. He was recently
diagnosed with Stage 5 kidney disease. He is currently living in hospice at
your facility. I respectfully request that Mr. Madoff be approved for
compassionate release.
Program Statement (PS) 5050.50, Compassionate Release/Reduction in

Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g),
provides in relevant part that:
RIS consideration may be given to inmates who have

been diagnosed with a terminal, incurable disease and
whose life expectancy is eighteen (18) months or less, and/or
has a disease or condition with an end-of-life trajectory
under 18 USC § 3582(d)(1).
PS 5050.50, page 4. Additionally, the U.S. Sentencing Commission has

adopted U.S.S.G. § 1B1.13. According to § 1B1.13 of the Sentencing
Guidelines, extraordinary and compelling circumstances exist to warrant
compassionate release when:
(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e., a

serious and advanced illness with an end of life trajectory). A
Brandon Sa mpl e PLC brandonsample.com Te l : (802) 444 - 4357

P.O. Box 250 c lemenc y.com Fax: (802) 779 - 9590
Rutland, VT 05702 sente n c in g.net i nfo @ b ra nd on samp I e. com

specific prognosis of life expectancy (i.e., a probability of death

within a specific time period) is not required. Examples
include metastatic solid-tumor cancer, amyotrophic lateral
sclerosis (ALS), end-stage organ disease, and advanced
dementia.
(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive

impairment, or
(III) experiencing deteriorating physical or mental health

because of the aging process,
that substantially diminishes the ability of the defendant to

provide self-care within the environment of a correctional
facility and from which he or she is not expected to recover.
(B) Age of the Defendant.—The defendant (i) is at least 65 years

old; (ii) is experiencing a serious deterioration in physical or
mental health because of the aging process; and (iii) has served
at least 10 years or 75 percent of his or her term of
imprisonment, whichever is less.
U.S.S.G. § 1B1.13, App. Note 1.
I respectfully submit that Mr. Madoff is eligible for compassionate release

under PS 5050.50 based on his Stage 5 kidney disease, a terminal disorder.
Mr. Madoff is currently living in hospice at the institution. Stage 5 kidney
disease clearly has an "end-of-life trajectory." Mr. Madoff does not need to
demonstrate that he will die within 18 months under the BOP's revised
program statement. Rather, his Stage 5 kidney disease need only put him
on an "end-of-life trajectory."
I also respectfully submit that Mr. Madoff meets the requirements for
compassionate release under § 1B1.13 of the Sentencing Guidelines.
Specifically, Mr. Madoff has a terminal illness within the meaning of §
Cf BRANDON SAMPLE
,D ATTORNEY AT LAW
Mr. Bernard Madoff - Request for Compassionate Release
Page 2

1B1.13, App. Note 1(A)(i). Mr. Madoff also qualifies for compassionate
release because he is "suffering from a serious physical condition" and/or
"experiencing deteriorating physical or mental health because of the
aging process." U.S.S.G. § 1B1.13, App. Note 1(A)(ii)(I) & (III). Mr. Madoff is
not able to provide "self-care" for his Stage 5 kidney disease, and he is not
expected to recover from this disorder.
Finally, Mr. Madoff also qualifies for compassionate release under U.S.S.G.
§ 1B1.13, App. Note 1(B). Mr. Madoff is 81, plainly experiencing "a serious
deterioration in physical [] health because of the aging process," and has
served ten years of his sentence. U.S.S.G. § 1B1.13, App. Note 1(B).
Mr. Madoff has secured a release residence with a family friend. And while
the nature of Mr. Madoff's offense was no doubt serious, he has no
criminal history and owes no restitution. The balance of all factors strongly
favor granting compassionate release.
Accordingly based on the foregoing, I respectfully request that Mr. Madoff

be approved for compassionate release.
Thank you for your consideration of this request. I look forward to your
response.
Sincerely,
Brandon Sample
Encl. (0x)
BCS
cc: Mr. Bernard Madoff via U.S. Mail
File
Cf BRANDON SAMPLE
,D ATTORNEY AT LAW
Mr. Bernard Madoff - Request for Compassionate Release
Page 3
Exhibit B
u.s1 Departn~ent of Justice.

Fed ral Bure.all of Prisons
n:·c os 2019
MEMORANDUM FORT. SCARANTINO, COMPLEX "ARDEN

FEDERAL MEt)ICAL CENTER
BUTNER, NORTH CAROLINA
FROM:
/iv-,--
Ken Hyle
Assistant Counsel
SUBJECT: MADOFF, Bernard L.

Federal Register No.
Request for Reduction Sentence
Please be advised that Mr. Madoff's est for a. reduction in

?entencz_e '.(RIS) '"pursuant· to 18-'U-:B;'C·.· ::g _35·s'2·,(cf{~;{y .(A) ,u·and PS
5050 .50, ·.Com. assionate Re·lease/Reducti n 'in Sent.erice: 'Procedures
for Implementation .of 18 u.s.:c.·· §·§ 358, (c) (T){A) and 420S(g) ,·
section 3 (. i:t} ~ "Terrnin_al Medical Q<:>nditf' on") is. qenie<:3:. We have
carefully reviewed· the documentation a companying thi,s.request
and have corisulted with-BOP's Medical irector. · _ · . ·
. ~ .
. .
.
. .
Section 3 (a) of PS- 5-050.50 provides t:t;iat RI_S_ consideration may
~e given to_an inmate who has~been:·aiagnosed;with a :terrni~al,
incurable disease and whose life E:xpec~ancy is l8 months or less
or ·who has a disease or condition with .an end-of-life trajectory
under 18 U. S. C. § 3582 ( d) (. l) . In addi ion, section . 7 'requires
consideration o.f factors s:µch as. the n ture and circumstances of
the inmate's offense and whether· release I would
. . . . . minimize .the
severity of the offense.
Mr. Madoff, age 8:l; has. a history of -e d-stage renal.,di.sease,

·l?:ypertension, cardiovascu],ar·disease, sophageal refiux,
hyperparathyroidism; bladder neck obst ction, _and· insomnia. He
has b.een close];y monitored by nephrolo, y and~ in. Augu13t 2019;
was found to have.a glome:tular·filtrat.i.on rate of £:our. He has
I
refused dialysis_ and any. Ju:r:the:t testi g, ·including. laboratory
work.- Given his·: refusal 6£ -.treatment-,- ·he- was admitted to the-
0
co~fo:r:t care: .program 'at FMC Butner;' hq, ever·,. ·me¢i_icaJ. staft;1 .
cpp.t_inu_e, to . ~e.ncourage him to comp·ly~ wi:· h .h±:s· treairrfent 12aan·.
I : _. '.•
Mr. Madoff remains independent with hi activities of daily ·

living· (ADLs) and instrumental ADLs, b t requests c!-Ssistance
with laundry and.uses a walker when ambulating. His condition
is considered terminal with a life exp ctancy of less than 18
months.
However, Mr. Ma.doff was accountable fo a loss to investors of

over $13 billion. Accordingly, in lig t of the nature and
circumstances of his offense, his relerse at this time would
minimize the severity of his offense. Therefore, although he
meets the criteria for a RIS under sec ion 3(a) 1 his RIS request
is denied.
Please provide Mr. Madoff with a copy ,f this decision.
cc: Darrin Harmon,·Regional Director, Mid-Atlantic Region
2
Exhibit C
FCCBUTNER. (BUX) Reduc.tion in ,seritenc~ I Compassionate Release

FMC BUTNER (BUH) . · Comprehensive Medical Summary
Page 1 of2
Name:· Madoff, Bernard Date· of Birth: Care Le1iel: '4 ·

Register Number: 61727-054 Age: 81 MH Care Level: 1 .
J RIS criteria requested unde.r consideration: · ITerminal Medical Condition

,,
"
MEDICAL CONDITION
,, "
.End stage renal disease· .,,

PRIMARY DIAGNOSIS .
l
Provide diagnostic basis {test results, consultations, and refei-ra/reports/opinions):

., ' ' '
Followed by nephrologist ·for chronic kidney ~isease (CKD). ·GFR 50 (normal.> 60) on 5/25/11: CKD stage4. GFR do\Nn to 13 on
4/10/13. GFR 9 on 4/3/18), S on 6 /18/19: end stage renal disease (ESRD). Complained of fatigue, needing help to ma~e his
bed at chronic care clinic·on
.
6/26/19; Refused dialysis for ESRD- 6/26/19.. Admitt~d to Comfart'Care Unit
, '
for palliative care for
'
ESRD on 7/18/19. Repeat GFR 4 (8/30/19).
.·
Hyperparathyroidism, hyperlipidemia, cardiovascular disease, HTN, GERD, bladder netk
CO-MORBID DlAG.NOSES obstruction, insomnia, pniritus, low back pain.
''
"'
Provide diagnostic basis (test results, consultations, and referral reports/opinions):

Parathyroid hormone 349.2 (normal range 15-65): secondary to CKD, treated with calcitonin. Non-ST elevation myocardial
infarction diagnosed December 2013. Cardiac cath 12/20/13 show~d 99% ulcerated plaque mid-left circumflex treated with
bare metal stent. EF 40-45% per echo. High blood pressure; likely contributes to renal failure per nephrologist. Back pain: no
NSAIDS due to CKD. Complained of generalized itching September 2019, likely symptom of ESRD, treated symptomatically.
,,,,
SIGNIFICANT MEDICAL CONDITION(S) (permanent, progressive, and ordinarily related to diseases associated with aging)
"q
that substantially.. d1minish the ability to function in a correctional facility: . · ··, .
n Not applicable
[Z)Atherosclerotic cardiovascular disease
·□ Obstructive and restrictive, lung diseases ·
Ooem,entias such as Alzheimer, Lewy body dementia (LBD), and frontotemporal dementia
□ complications of infectious diseases such as HIV dementia or progressive multifocal leukencephalopathy
D Degenerative neurological diseases (ALS, Par~inson, and Huntington disease, and certain forms of multiple sclerosis)
□ severe chronic pain that persists despite optimal.medical management
□ chronic liver failure with recurrin.g ascites or encephalopathy (with no possibility of transplantation)
□ chronic renal failure stage 4 or 5 (with no possibility of transplantation)
D Rheumatologic conditions that have progressed tp deformity, (rheumatoid arthritis, gout, and ankylosing spondylitis)
D Diabetes mellitus (Type 1 or 2), with established retinopathy, nephropathy, or peripheral neuropathy.
Osevere musculoskeletal degeneration, such as end-stage.osteoarthritis. · ·
nother:
For indicated condition(s), please provide relevant diagnostic background/basis of diagnosis (test results, consultations, and
~eferral reports/opinions}: · -
Non-ST elevation myocardial infarction diagnosed December 2013. Cardiac cath 12/20/13 showed 99% ulcerated plaque
mid-left circumflex treated with bare metal stent. · EF 40-45% per echo (normal EF S~-70%) ..
. .
Madof.f, Bernard ·
· · Comprehensive f\Aedical Summary
61727-054 . Page 2o/2
-- · ASSISTlVE DEVlCES/EQUIPMENT.., . "
..
0 No Assistive D~vices Issued 4-wheelwalker

® Issued the following Assistiv_e Devices:_ Back brace - ,•
,•
.. ,' .. . .
,,
··•.
- ....
INSTRUMENTAL J\CTIVITIES OF DAILY LIVING (IADL) / PHYSICAL SELF-MAINTENANCE SCALE (PSMS}: .. '•
[ZJ IADL Assessll)ent dated. · .·09/27/2019 Total.score: . 8 . .,

..
[ZJ PSMS Assessment dated · ·09/27/2019 Total score: 4 ,,
,
- ~
LIFE EXPECTANCY/ TERMINAL MEDICAL CONDITION: ,·

® The inmate HAS BEEN diagnosed with a ~ermin?I medical condition .. Life expectancy is I :-
< 18 . months. .. . I
0 The inmate HAS NOT BEEN diaghosed with ~terminal.medical condition. The United States life Tables indicate that the life
·expectancy fo~ someone with the' iomate's demographics is I . · jyears . . .· · · . •
If diagnosed with a terminal medical condition, how was life expectancy d¢termiried?
{Cite Consultant/Specialist documentation or Medical Literature)
Through consultation, review of labs, and m~c,iical follow up.
MEDICAL,, SUMMARY NARRATIVE: (If not noted above, address test results, consultations, and referral reports/opinions):
-
.,
Bernari:f Madoff is 81 years old. He has chronic kidney failure that has progressed to end stage renal disease. His most recent
glomerular filtration rate (GFR} was 4 on 8/30/19 {a normal GFR is 60). At this level of renal failure, the kidneys can no longer
filter body waste. He has refused dialysis. His renal disease also causes secondary hyperparathyroidlsm, anemia in chronic
kidney disease, and is likely the cause of the his w.orsening, widespread itching. Untreated end ~tage renal disease eventually
. causes death from buildup of unfiltered body wastes and fluid .
..
t
'
REDUCTION IN SENTENCE MEDICAL CRITERIA ELIGBILITY DffiRMlNATlON:

The attending physician has reviewed the inmate's health record and determined that: " /
D the inmate's medical condition DOES NOT meet the _medical criteria for: Terminal Medical Condition
0 the inmate HAS been diagnosed with a terminal, incurable disease and whose life expectancy is I < 18 Imonths.
0 the inmate HAS been diagnosed with one or more incurable, progressive illness(es) and/or has suffered a debilitating injury from
which they wlll not recover. · -
D the Inmate IS suffering from chronic or serious medical·condition(s) related to the aging process for which conventional
treatment promises no substantial improvement to his/her mental or physical condition, and that the deteriorating physica I or
cognitive limitations·substantially diminishes his/her ability to function in a correctional facilltv. · -
RIS CASE REVIEW COMPLEfED BY: SUMMARY REVIEWED AND SUBMITTED BY:
,·
n's.· a r· ~
AttendingPhys~1ci .
· o, MD .
~ 1 ffr~C . · ·. · .. · . Butner~ NC
Printed Name: M. argare t Ha Ie, ·pA. -C. ' Printed Name:
.
DATE: 09/30/2019
EXHIBIT D
(To Be Submitted Under Seal)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
---------------------------------- x
:
UNITES STATES OF AMERICA,
: PROPOSED ORDER GRANTING
MOTION FOR
: COMPASSIONATE RELEASE
- v - :
BERNARD L. MADOFF, : No.: 1:09-cr-00213-DC-1
Defendant. :
:
---------------------------------- x
Before the Court is Defendant Bernard L. Madoff’s Motion for Compassionate
Release (ECF _____). Having considered the arguments by Madoff and the United
States, the Court will GRANT the motion. Madoff’s sentence is reduced to TIME
SERVED. The Clerk shall provide a copy of this order to the Bureau of Prisons and
the U.S. Marshal’s Service for immediate processing.
ORDERED this ______ day of _______________________, 2020.
___________________________________
UNITED STATES CIRCUIT JUDGE
Sitting by Special Designation

Madoff Compassionate Release

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Madoff Compassionate Release

Încărcat de

Drepturi de autor:

Formate disponibile

Case 1:09-cr-00213-DC Document 212 Filed 02/05/20 Page 1 of 27

Attorney for Bernard L. Madoff

UNITED STATES DISTRICT COURT

BERNARD L. MADOFF, : No.: 1:09-cr-00213-DC-1

on compassionate grounds sparking significant controversy over the use of

Bernard L. Madoff - Motion for Compassionate Release Page 1 of 27

based on his terminal diagnosis of prostate cancer. Lockerbie Convict Returns to

Jubilant Welcome, New York Times (Aug. 21, 2009),

https://www.nytimes.com/2009/08/21/world/europe/21lockerbie.html. The cases of al-

Megrahi and Bernard Madoff could not be more different—different jurisdictions,

compassionate release? and (2) when is it appropriate to release a terminally ill

A term of imprisonment that constituted just and proportionate punishment

at the time of sentencing may become disproportionately severe based on changed

circumstances, such as terminal illness. Congress clearly contemplated this scenario

the compassionate release program.

and a life expectancy of less than 18 months, is truly in furtherance of statutory

sentencing goals and our society’s value and understanding of compassion.

Bernard L. Madoff - Motion for Compassionate Release Page 2 of 27

asks this Court for a modicum of compassion.

Madoff presents “extraordinary and compelling reasons” for compassionate

BOP’s denial of his compassionate release request because a reduction in sentence

Sentencing Commission’s standards for a sentence reduction, and consideration of

law, removing a major obstacle from judicial review of sentences to determine

whether “extraordinary and compelling reasons” exist to permit a sentence reduction

FSA, this Court is afforded jurisdiction to make the § 3553(a) determination of

Bernard L. Madoff - Motion for Compassionate Release Page 3 of 27

necessary” to accomplish the goals of sentencing.

A. History of Compassionate Release

Congress enacted the current compassionate release statute, 18 U.S.C. § 3582,

consideration of the § 3553(a) factors if “extraordinary and compelling reasons

warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). In 1984, Congress conditioned

the statute in appropriate cases.

parole and create a “completely restructured guidelines sentencing system.” S. Rep.

“cases of severe illness, cases in which other extraordinary and compelling

circumstances justify a reduction of an unusually long sentence.” Id. at 55. Rather

Bernard L. Madoff - Motion for Compassionate Release Page 4 of 27

courts to decide, in individual cases, if “there is justification for reducing a term of

imprisonment.” Id. at 56.

for modification of sentences” to enable sentence reductions when justified by various

and reduction to a term of imprisonment for ‘extraordinary and compelling reasons’

permitted “later review of sentences in particularly compelling situations.” Id.

In sum, Congress via § 3582(c)(1)(A) gave federal sentencing courts the

equitable power to correct sentences that—while lawful when originally imposed—

no longer make sense.

B. The U.S. Sentencing Commission Concluded That §

Congress initially delegated the responsibility for determining what

constitutes “extraordinary and compelling reasons” to the U.S. Sentencing

be considered extraordinary and compelling reasons for sentence reduction, including

Bernard L. Madoff - Motion for Compassionate Release Page 5 of 27

limitation to that delegation of authority: “[r]ehabilitation of the defendant alone

shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t).

resentencing under § 3582(c)(1)(A). The Commission finally acted in 2007,

objective criteria—the Commission amended its policy statement, admonishing the

Federal Bureau of Prisons’ Compassionate Release Program (Apr. 2013); U.S.S.G. §

C. Congress Changed the Process for Compassionate Release

Bernard L. Madoff - Motion for Compassionate Release Page 6 of 27

Commission’s definition of extraordinary and compelling reasons, absent a BOP

compassionate release, failed to set timelines for reviewing compassionate release

requests, failed to create formal procedures for informing prisoners about

compassionate release Program, resulting in inmates who may be eligible candidates

Deffebach, Second Look Resentencing Under 18 U.S.C. § 3582(c) as an Example of

Bureau of Prisons Policies in Overincarceration, 21 FED. SENT. RPTR. 167 (Feb.

Congress labeled these changes, “Increasing the Use and Transparency of

1 The OIG report is accessible at https://oig.justice.gov/reports/2013/e1306.pdf