Can BOP Care for Inmate with Leukemia? Appeals Court Splits

Can BOP Care for Inmate with Leukemia? Appeals Court Splits

Jeffrey Rothbard was already on probation for a state conviction for felony forgery. He had used check design software to create two checks, together worth under $8,000, supposedly written by his employer and payable to his wife, when he came up with a new scheme. He created “GreenCity Finance,” a bogus financial service firm supposedly helping to arrange loans for businesses to acquire or build energy-saving improvement facilities, but which never did so. Instead, Rothbard absconded with more than $210,000 in deposit payments made by 17 customers.

Indicted on a federal wire fraud charge, Rothbard pleaded guilty. Then the real legal skirmishing began. While the sentence for his second, larger offense was being considered, Rothbard argued in a pre-sentencing filing that his health — he had been diagnosed years earlier with what his doctor termed a “particularly virulent” form of leukemia — would make incarceration unreasonable. To support his argument, he contended the Bureau of Prisons might not be able to provide the care necessary for his illness.

A probation officer took the convict’s illness into account in recommending a less stringent sentence: a year in a halfway house, followed by another year of home arrest. But, unpersuaded, the federal judge in Indiana sentenced Rothbard to 24 months of incarceration in federal prison, in line with federal sentencing guidelines.

To arguments that Rothbard might not receive necessary care while in federal prison, the decision by the sentencing judge pointed to statements by a regional medical director for the BOP, assuring the court that inmates needing daily nursing care can receive essential services from one of six Medical Referral Centers, and noted an expedited BOP process allowing medical providers to request drugs not on the agency’s formulary.

This was more than a minor point since the particular drug prescribed by Rothbard’s physician for his patient’s particular form of leukemia was not on BOP’s formulary and would cost between $115,000 and $124,000 annually.

Rothbard next appealed the sentence to the 7th Circuit, the federal appeals court based in Chicago. A three-judge panel of the appeals court postponed Rothbard’s reporting date to federal prison and took the somewhat unusual step of asking BOP for more information on what medical care Rothbard would likely receive in federal prison.

According to BOP’s information, since 2010, the agency has received ten requests from inmates for the drug that Rothbard was taking and approved all those requests. The appeals court ultimately dismissed Rothbard’s appeal, thus affirming his sentence – but was sharply divided in its 2-1 ruling.

Two judges observed that, had they been the sentencing judges, they might have accepted Rothbard’s arguments, but said they couldn’t fault the sentencing judge’s reasoning. Even so, the two judges cautioned, if Rothbard believes BOP delays will deprive him of his prescribed drug for any significant time, or the agency insists he gets a drug already in its formulary, he can use BOP grievance procedures.

But Judge Richard Posner, a leading scholar, strongly dissented, accusing his colleagues of ignoring “the extensive literature on the medical staff and procedures” at the BOP, which he claimed proved the agency “cannot be trusted to provide adequate care” for Rothbard. He also questioned how timely or effective it would be for Rothbard to resort to BOP’s grievance process.

Christopher Zoukis is the author of the Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (Prison Legal News Publishing, 2016), and College for Convicts(McFarland & Co., 2014). He regularly contributes to The Huffington Post, New York Daily News, and Prison Legal News. This article is partially adapted from the Federal Prison Handbook. He can be found online at