A divided 7th Circuit Court of Appeals has affirmed the two-year sentence handed down to an older man being treated for leukemia, though the dissenting appellate judge had serious questions about the Bureau of Prisons’ ability to meet the man’s medical needs.
In USA v. Jeffrey Rothbard, 16-3996, Jeffrey Rothbard was on probation for a forgery conviction when he launched a wire fraud scheme that ultimately earned him more than $200,000 in illegal funds. Acting as an agent of “GreenCity Finance,” Rothbard would purport to arrange for financing for energy saving upgrades for companies wanting to improve their facilities, then would pocket the companies’ deposits for his personal use.
After pleading guilty to wire fraud, Judge Richard Young of the U.S. District Court for the Southern District of Indiana sentenced Rothbard to 24 months in prison. Rothbard challenged his sentence on appeal, questioning the ability of the Bureau of Prisons to care for his health needs.
In 2005, Rothbard was diagnosed with a “particularly virulent” form of leukemia, and before his sentencing, Rothbard’s probation officer recommended a more lenient sentence of 12 months’ detention in a halfway house and another 12 months in home confinement due to his illness, which also included mental health concerns. Additionally, Rothbard filed a pre-sentencing memorandum that argued that a custodial sentence would be unreasonable because the BOP could not guarantee that he would receive the medical care he needed.
In his sentencing decision, Young considered a letter from a BOP medical director who wrote that inmates who may require daily nursing care can receive services from the Medical Referral Center, which is staffed 24 hours a day and which contracts with community specialists. Additionally, the director said that the BOP permits medical providers to request certain drugs, such as the ones Rothbard uses for his leukemia treatment, through an expedited approval process.
The 7th Circuit Court of Appeals granted Rothbard’s request for a stay of his report date, then requested additional information about what Rothbard could expect if he were incarcerated in a BOP facility. Chief Judge Diane Wood noted in a Friday opinion that it is unusual to supplement the record on appeal, but said her court justified taking such a step because the stakes were high.
Through the requested additional information, the 7th Circuit learned that since 2010, ten inmates with the same condition as Rothbard have requested the drug prescribed to him, and all 10 requests were approved. Thus, a divided 7th Circuit affirmed Rothbard’s sentence.
Judge Richard Posner dissented, writing in a separate opinion that Rothbard was right in his argument that the BOP cannot guarantee adequate medical attention. While the bureau has provided the necessary drug to other inmates suffering from the same condition, it will not commit to providing it to Rothbard, Posner said.
“Essentially the prosecution, the district court, and now my colleagues, ask that the Bureau of Prisons be trusted to give the defendant, in a federal prison, the medical treatment that he needs for his ailments,” Posner wrote. “Yet it is apparent from the extensive literature on the medical staff and procedures of the Bureau of Prisons (a literature ignored by my colleagues), that the Bureau cannot be trusted to provide adequate care to the defendant.”
Rather than affirming the 24-month sentence, Posner wrote that he would reverse that sentence and instead impose the sentencing recommendation from Rothbard’s probation officer, or reverse and remand the case with instructions to “appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions… .”