James Michael Bowers
James Michael Bowers was sentenced in 1990 to 30 years in prison for conducting a continuing criminal enterprise and drug distribution. His lengthy sentence also reflected his extensive and serious criminal history, including a plan, which he had later abandoned, to hire a hit man to murder suspected informants.
Eleven years later, Bowers was dying of prostate cancer that had spread to multiple organs. Tumors obstructed his urinary tract and bowels, causing Bowers acute and disabling pain. His doctors told him he had no more than six months to live. The prison warden, however, turned down Bowers’ request for compassionate release because even though he was dying, his criminal past included “behaviors [that] could be repeated even in your state of illness; thus, the safety of the public could be jeopardized by your release to the community.” Bowers brought an administrative appeal to the warden, freely admitting he had done “some terrible things”:
“I offer no defense to the bad things I did during that terrible time…. I will never harm or wish harm on … anyone. I promise you Warden, that’s not my purpose, and I have no strength or inclination to even think of such things these days. I am a dying man….”
The warden denied the appeal, and Bowers died behind bars at age 63 while his appeal to the Bureau of Prisons regional director was pending.
New circumstances can make the continued incarceration of a prisoner senseless and inhumane. Aggressive cancer may suddenly leave a prisoner facing death behind bars, as James Michael Bowers’ case exemplifies. Old age may so whittle a prisoner’s body and mind that he cannot dress, eat, or bathe by himself. An accident may claim the life of a prisoner’s husband, condemning their young children to foster care when there is no family to look after them.
In 1984, Congress granted federal courts the authority to reduce sentences for just such “extraordinary and compelling” circumstances, after taking into account public safety and the purposes of punishment. It assigned to the United States Sentencing Commission (USSC, Sentencing Commission) the responsibility to describe what those circumstances might be.
Congress authorized what is commonly called “compassionate release” because it recognized the importance of ensuring that justice could be tempered by mercy. A prison sentence that was just when imposed could—because of changed circumstances—become cruel as well as senseless if not altered. The US criminal justice system, even though it prizes the consistency and finality of sentences, makes room for judges to take a second look to assess the ongoing justice of a sentence.
Prisoners cannot seek a sentence reduction for extraordinary and compelling circumstances directly from the courts. By law, only the Federal Bureau of Prisons (BOP, the Bureau) has the authority to file a motion with a court that requests judicial consideration of early release. Although we do not know how many prisoners have asked the BOP to make motions on their behalf—because the BOP does not keep such records—we do know the BOP rarely does so. The federal prison system houses over 218,000 prisoners, yet in 2011, the BOP filed only 30 motions for early release, and between January 1 and November 15, 2012, it filed 37. Since 1992, the annual average number of prisoners who received compassionate release has been less than two dozen. Compassionate release is conspicuous for its absence.
The paucity of BOP motions for sentence reduction for extraordinary and compelling reasons is not happenstance. The BOP insists that it has essentially unbounded discretion with regard to compassionate release, and it has chosen to exercise that discretion to reject compassionate release in all but a few cases.
On the one hand, the BOP has sharply limited the grounds for compassionate release, refusing to seek a sentence reduction except when the prisoner is expected to die within a year or is profoundly and irremediably incapacitated. It has not utilized the broader range of medical and non-medical circumstances that the Sentencing Commission has described as warranting consideration for compassionate release.
On the other hand, the BOP has arrogated to itself discretion to decide whether a prisoner should receive a sentence reduction, even if the prisoner meets its stringent medical criteria. In doing so, the Bureau has usurped the role of the courts. Indeed, it is fair to say the jailers are acting as judges. Congress intended the sentencing judge, not the BOP, to determine whether a prisoner should receive a sentence reduction. The BOP would exercise a limited administrative function, screening prisoner requests for compassionate release to ascertain whether their circumstances might fall within those intended by the statute and later described by the Sentencing Commission. In such cases, it was intended that the BOP should make a motion for sentence reduction to the court. Congress instructed the court considering the motion to give due consideration to the nature of the crime, the likelihood of re-offending, the purposes of punishment, and other relevant factors in making its decision.
But in practice, when reviewing prisoner requests for compassionate release, the BOP makes decisions based on the very factors that Congress directed the courts to consider. For example, the BOP determines whether an otherwise deserving prisoner might re-offend, how a victim or the community might react to early release, and whether the prisoner has been punished enough. BOP officials often conclude a dying prisoner should not be permitted to spend his final months with his family because he is still physically capable of committing a crime if released, however unlikely the prospect that he would do so.
Compassionate release might not be so scarce if the courts were able to review BOP decisions declining to seek early release. But the Department of Justice (DOJ, the Department) has successfully persuaded most courts that they lack the authority to review the BOP’s refusal to bring a motion for sentence reduction, however arbitrary or unfair that decision may be.
When Congress placed compassionate release decisions in the hands of the courts, it honored the basic human rights and due process requirement that criminal justice decisions on the initial and ongoing deprivation of liberty should be made by independent and impartial entities. The BOP cannot accurately be described as either. It is a component of the DOJ, directed and supervised by the deputy attorney general. In recent years, the Department has taken policy positions averse to any but the most restrictive interpretation of compassionate release, favoring finality of sentences over sentence reductions for extraordinary and compelling reasons. Even at the level of individual cases, the DOJ exercises influence: when considering inmate requests, the BOP consults the prosecutor—and in some cases the deputy attorney general—before making a final decision.
The BOP’s compassionate release process also suffers from lack of basic procedures to ensure fair and reasoned decision-making. For example, there is no hearing in which the prisoner or his counsel—if he has one—can present his case for compassionate release, rebut arguments against it, or correct any factual mistakes BOP officials may have made. The BOP does not tell the prisoner what information or concerns it has relied on from DOJ officials or other stakeholders, which denies the prisoner a meaningful opportunity to respond to negative assessments or challenge newly raised arguments. While the prisoner can administratively appeal a warden’s denial, wardens almost never relent. Subsequent appeals up the chain to the Bureau headquarters (referred to as the BOP Central Office) are also doomed; in 2011, for example, the BOP Central Office did not grant any administrative appeals in compassionate release cases.
The DOJ has recently acknowledged that the ever-expanding federal prison population and the budget of almost $6.2 billion that BOP uses to keep federal prisoners locked up are unsustainable. According to the Department’s inspector general, the growing and aging federal prison population consumes an ever-larger portion of the Department’s budget, contributes to overcrowding that jeopardizes the safety of federal prisons and well-being of prisoners, and may force budget cuts to other DOJ components. One of the most readily available, feasible, and sensible steps the BOP can make to reduce federal prison expenditures would be to ensure that compassionate release functions as Congress intended.
Increasing the number of dying or debilitated prisoners who are granted compassionate release would not markedly reduce the total federal prison population, but would free the BOP from the unnecessary security costs of confining prisoners who pose scant risk of harm to anyone and from their medical costs. The per capita cost of caring for a prisoner in one of the BOP’s medical centers was $40,760 in FY 2010, compared to an overall per capita cost of $25,627. Releasing prisoners who are not suffering from grave medical conditions but who face other compelling circumstances—such as those whose children are destined for the foster care system or who are desperately needed at home to care for dying family members—would advance other important societal goals, such as preservation of the family.
Compassionate release also deeply implicates fundamental human rights principles. We recognize that there are members of the public—and public officials as well—who cannot accept the idea of early release for persons who have been convicted of felonies, especially those who have harmed victims and their families. But a criminal justice system that respects human rights does not only ensure accountability for those who commit crimes. It also ensures that sanctions are proportionate to the crime and further the goals of punishment. A prison sentence that constituted a just and proportionate punishment at the time it was imposed may become disproportionately severe in light of changed circumstances, such as grave illness. Keeping a prisoner behind bars when it no longer meaningfully serves any legitimate purpose cannot be squared with human dignity and may be cruel as well as senseless.
Many states have laws permitting early release or parole for medical or other reasons, establishing various procedures and criteria for eligibility. There has been little research on the experience in the different states, although the available information suggests that the laws are greatly underutilized. The experience of the BOP is important because it is the largest prison system in the country. Also, we suspect the Bureau’s resistance to forwarding cases to the courts reflects concerns—such as sufficiency of punishment and likelihood of re-offending—that state decision-makers share as well. We hope that our in-depth analysis of the BOP’s policies and practices will prompt similar inquiries into similar state programs.
Dr. Gene Brown (pseudonym), age 63, a physician and medical researcher, was sentenced in 2010 to five years and three months in prison for mail and wire fraud connected to a fraudulent investment scheme. His scheduled release date is in November 2013. He is terminally ill, with prostate cancer that has metastasized into his bones. According to Brown, he is in constant pain, suffers from a variety of other medical conditions, sleeps the greater part of each day, and spends most of his waking hours in medical care.
Brown has sought compassionate release. On August 17, 2011, a request submitted by his doctor on his behalf was denied. While recognizing that his prognosis was poor because of the metastasized cancer, the staff committee set up by the warden to review compassionate release requests (the Reduction in Sentence Committee) recommended that his request be denied because of the “severity of your crime [and] the possibility of your ability to reoffend,” and the warden concurred. The memorandum from the warden to Brown detailed the devastating impact his scheme had on the people he defrauded. It noted, for example, that one victim was unable to get a critical stem cell transplant surgery for her husband because of the $175,000 she had given to Brown to invest, none of which she recovered. But the memorandum offers no discussion of whether or why Brown might be likely to re-offend. It only suggests re-offending would be possible, presumably because, in the committee’s judgment, Brown has sufficient physical and mental capacity to commit another crime should he so choose. When Human Rights Watch asked Brown if he filed an appeal to the denial of his request, he said he did not know that appeals were possible.
On November 8, 2011, the oncologists at his prison recommended Brown be reconsidered for sentence reduction. Four months later, on March 15, 2012, Brown asked for an update on the possible reconsideration. The staff response stated,
“We are aware that your prognosis is poor and you are progressively getting worse. Although the [oncology staff] supports a reconsideration of a [Reduction in Sentence], it is from a medical standpoint only. Please be advised that your denial of a [Reduction in Sentence] was based on your crime and your ability to re-offend. Therefore, the factors which prevented you from receiving a favorable response the first time still remains [sic].”
Throughout our report, we present the stories of individual prisoners, most of whom were denied compassionate release by the Bureau of Prisons. These stories are of prisoners who, in our opinion, have the requisite “extraordinary and compelling” reasons to seek compassionate release as described by the United States Sentencing Commission. We do not know, of course, whether the courts would have granted early release to any of these prisoners, but we believe the BOP should have forwarded their cases on to the courts so that judges could have made that decision.
Compassionate release has not been a high priority for the Bureau of Prisons. Senior BOP officials have failed to pay appropriate attention to how wardens define and exercise their discretion in some instances, and in others, have nurtured a culture of “no” that influences how wardens respond to prisoner requests. Oversight by the Department of Justice has compounded the problem. Ranging from benign neglect to active resistance to program reform, DOJ oversight has muted the promise of compassion envisioned by Congress.
There are some promising signs of change. The BOP has created an internal working group to look at its compassionate release program and the Office of the Inspector General of the DOJ is conducting an audit of how the Bureau implements its compassionate release authority. The new director of the BOP, Charles Samuels, has told us of his interest in reforming the program. We are encouraged to learn that under his leadership, more people are receiving compassionate release.
To further significant reform, we offer the following recommendations to the BOP, the DOJ, and Congress. These recommendations are designed to ensure that all worthy compassionate release requests receive judicial review, to remove the unnecessary and inappropriate roadblocks the BOP has instituted to compassionate release, and to stop the “jailer” from usurping the role of the judge in deciding who should receive a sentence reduction.
To the Bureau of Prisons
The Bureau of Prisons must reform its process for responding to prisoner requests for sentence reduction consideration to ensure it exercises its responsibilities consistent with federal law and the principle of separation of powers. The BOP should ensure that it responds quickly, fairly, and compassionately to the needs of prisoners in extraordinary and compelling circumstances.
The BOP to date has believed that it has to “recommend” prisoners for compassionate release when it makes a motion to the courts. It has been unwilling to do so unless, in its judgment, the prisoner presents extraordinary and compelling circumstances and the BOP believes early release would not compromise public safety or other criminal justice considerations. But that is not what Congress intended it to do.
We urge the BOP to re-conceptualize its view of compassionate release motions. They should be a vehicle for presenting to the court prisoner requests whose grounds the BOP has verified as indeed extraordinary and compelling. That is, after establishing the validity of the grounds for a prisoner’s request—for example, that the prisoner has a terminal illness—the BOP would send the case to the court with a motion seeking the court’s review.
Specifically, the BOP should:
- Immediately issue a memorandum to executive staff, to be memorialized as soon as possible in an official program statement and, to the extent necessary, in new regulations, that provides that:
- The BOP will treat as extraordinary and compelling the reasons described in the USSC section 1B1.13 application notes. Where they exist, the BOP will not base a refusal to make a motion for sentence reduction or to request federal prosecutors to make it based on its views about public safety, sufficiency of punishment, community concerns, or other factors relevant to sentence reduction that have been statutorily assigned to the courts by 18 U.S.C. section 3582(c)(1)(A)(i). If deemed necessary, the government’s attorney may present objections to a sentence reduction on these or other grounds to the sentencing judge;
- Medical staff, social workers, and case managers working for the BOP will take affirmative steps to raise the option of seeking compassionate release to the attention of all prisoners they believe may have extraordinary and compelling reasons for early release;
- Denials of prisoner requests for consideration of sentence reduction by wardens, regional directors, or BOP Central Office staff should be written with specificity and should accurately state the grounds for denial and how different factors were weighed;
- All requests for compassionate release should be processed as quickly as possible. Warden decisions should be made within 15 working days of the request from the prisoner or someone on the prisoner’s behalf, and a final decision by the BOP director should be made no later than 20 working days after a positive recommendation by the warden; and
- In the case of appeals of denials of compassionate release, the prisoner will be deemed to have exhausted his administrative remedies 30 working days after the warden’s denial or the date of a final decision by the BOP Central Office, whichever is sooner.
- Direct facilities to ensure that prisoner handbooks inform prisoners of the availability of compassionate release, provide a non-exhaustive list of examples of the medical and non-medical circumstances that might constitute extraordinary and compelling circumstances, and advise prisoners on how to initiate requests for consideration for compassionate release. The BOP should also ensure the handbooks clearly explain how to administratively appeal a denial.
- Provide trained staff to assist prisoners who are illiterate or too ill or infirm to seek compassionate release or to appeal adverse decisions on their own. This assistance should include help with fashioning appropriate release plans.
- In the event that the US Probation Office has not finalized or approved release plans, but there are extraordinary and compelling reasons for the prisoner’s sentence reduction, the BOP should proceed with a motion to the court, recognizing that the court may not order the release of a prisoner until the release plan has been finalized.
- Establish a process to gather and annually publish statistics sufficient to ensure transparency with regard to how the BOP handles compassionate release. The statistics should include annual data regarding:
- The number of requests for compassionate release that are made to wardens, as well as the number considered by more senior BOP staff;
- The category of the “extraordinary and compelling” reasons alleged by prisoners to support their requests for early release (such as terminal illness or family circumstances);
- The grounds for grants and denials by wardens and Central Office staff;
- The number of motions for compassionate release made to sentencing courts;
- The number of prisoners released pursuant to 18 U.S.C. section 3582(c)(1)(A)(i); and
- The number of administrative appeals of compassionate release requests originally denied by a warden, and the number of those appeals that are granted or denied by the different administrative offices that receive the appeal.
To the Department of Justice
The Department of Justice should support congressional initiatives to legislate the recommendations noted below.
In addition, the DOJ should immediately:
- Work with the BOP to draft new compassionate release regulations that:
- Establish criteria for motions for sentence reduction consistent with the guidance of the USSC;
- Limit BOP compassionate release discretion to determining whether the circumstances consistent with that guidance exist; and
- Affirm that the BOP is not to deny a request for a motion for sentence reduction on public safety or other criteria that Congress has assigned to the courts for consideration.
- Establish as formal DOJ policy that, until such time as Congress has enacted the legislation recommended below, no DOJ official may object to bringing compassionate release motions on grounds of public safety, sufficiency of punishment, or other considerations that belong within the courts’ purview.
While the Bureau of Prisons can and should change its practices immediately, we also urge Congress to enact legislation to ensure judges can order the early release of prisoners for extraordinary and compelling reasons.
Specifically, Congress should:
- Enact legislation that explicitly grants prisoners the right to seek compassionate release from the court after exhausting their administrative remedies. This will enable courts to have final say over whether a sentence reduction is warranted, while providing courts with a developed record and the BOP with an incentive to state on the record its detailed reasons for denial.
- Enact legislation that requires the BOP to publish annual statistics regarding requests for compassionate release. The statistics should address, specifically, the number of requests made and their basis, as well as their disposition by different levels of the BOP and in the courts. They should also include data on the resolutions of administrative appeals of warden and regional director denials of prisoner requests. The data should be sufficient in quantity and specificity to ensure transparency and to enable the public and Congress to understand how compassionate release functions in practice.
- Amend 18 U.S.C. section 3582(c)(1)(A)(i) to clarify that:
- The BOP is required to make motions to the sentencing courts for a reduction in sentence in all cases that fall within the United States Sentencing Commission Guideline section 1B1.13; and
- While Congress has directed the sentencing courts to consider certain public safety or criminal justice grounds in assessing motions for compassionate release, the BOP is not authorized to assess those grounds and may not rely upon them as a basis for refusing to make a compassionate release motion.
In late 2007, Victoria Blain (pseudonym) moved with her husband Jack and their two young children Tina (22 months) and Peter (6 months) to a small Arizona town. In 2008, she was arrested and sent back to Alabama to face old drug charges. Blain readily admitted her role in a drug-related conspiracy and agreed to assist authorities. She was permitted to return to her home in Arizona to await sentencing and then permitted to self-surrender two months after she was sentenced. Because of her cooperation with the authorities, instead of receiving a 120-month sentence, she received a reduced sentence of 75 months.
Jack Blain took on the job of single parenthood after his wife reported to the federal prison camp near Phoenix, and for two years, with transportation help from the church community which they had joined, Victoria Blain saw her children on a weekly basis.
After serving a quarter of her sentence, she learned in January 2011 that Jack Blain had been diagnosed with an inoperable form of pancreatic cancer, and she requested compassionate release. The warden denied both her request and her subsequent administrative appeal “based on the totality of circumstances involved in this matter, including your current offense….” The Regional Office concurred. “While [your husband’s] prognosis is unfortunate, we do not find extraordinary or compelling reasons to support a reduction in your sentence.” Blain appealed to the BOP Central Office, pointing out that her children would be left without a family member to care for them—a circumstance the Sentencing Commission had contemplated as possible grounds for compassionate release—and asserting that she posed no danger to the community, as evidenced by the fact that the judge had allowed her to remain in her home after arrest, conviction, and sentencing.
Jack Blain, who had struggled to care for their children while falling deeper into pain and disability, died on August 12, 2011, with no response from the Central Office of the BOP. The church hastily arranged a temporary home for the children with a family and redoubled their efforts to secure Victoria Blain’s release.
The BOP eventually responded to her appeal with a request for information about the circumstances that led to the loss of her parental rights to her first child years earlier, when she was 18. Blain recounted a harrowing story of physical and psychological abuse at the hands of the child’s father, who stalked her and terrorized her family after Child Protective Services (CPS) denied him access to his son. She lost custody of and parental rights over her son when, driven by fear, she eventually allowed his father to have contact with him without CPS’s knowledge.
In the same letter explaining how she lost custody of her eldest child, Blain begged the BOP to allow her to parent the two young children, now housed with strangers who had begun to isolate them from her and from the church community that had worked so hard to help the family. Several weeks later, she reiterated her concerns about the guardian’s increasing isolation of the children from her and the church community.
On March 1, eight months after the death of Blain’s husband and six months since she had heard anything from the BOP about her request, she was asked again to explain why she lost her parental rights to her first child, and she did so. Finally on April 3, 2012, the Central Office denied Blain’s request, citing the fact that her children were “doing well” and noting that she had accomplished a great deal while incarcerated, attending college, parenting, and drug abuse classes. The denial stated, however, that “Ms. [Blain] engaged in her criminal behavior while her children were very young. Ms. [Blain’s] parental rights were terminated for a son born during a previous relationship. Review of Ms. [Blain’s] past history raises concern as to whether she will be able to sustain the stresses of sole parenting and employment while remaining crime-free.”
This report is based on over five dozen in-person and telephone interviews with current and former Bureau of Prison officials, federal prisoners, family members, lawyers, advocates, and former Department of Justice officials, as well as extensive email and written correspondence with an additional two dozen prisoners. We also reviewed official BOP documents pertaining to the efforts of dozens of individual prisoners to receive compassionate release. In addition, much of the information and perspective reflected in this report comes from the many years Families Against Mandatory Minimums has spent working to secure reform of the Bureau of Prison’s compassionate release practices.
The report contains specific data the Bureau of Prisons provided in response to our questions about its compassionate release program. In addition, the Bureau permitted Jamie Fellner to visit the Federal Medical Facility at Butner, North Carolina to interview prisoners there, as well as the warden and other BOP staff at the facility. The report also includes the results of our research into the legislative history of the statutory provision authorizing sentence reduction for extraordinary and compelling reasons.
In 1984, Congress passed the Sentencing Reform Act (SRA), a major overhaul of federal sentencing. It abolished parole for prisoners who committed their offenses after enactment of the SRA, established limited good time credits, eliminated parole, instituted determinate sentencing, and authorized the creation of the United States Sentencing Commission (USSC) to establish sentencing guidelines.
Although Congress furthered the goal of finality in sentencing by eliminating parole and limiting the court’s jurisdiction over a case once a conviction has become final, lawmakers recognized that circumstances could arise that would render a final sentence unjust or unfair. They included “safety valves” in the SRA, authorizing federal courts to revisit sentences in a few specific situations and to reduce them if appropriate.
One of those safety valves, colloquially referred to as “compassionate release,” enables the courts to reduce sentences for “extraordinary and compelling” reasons. Codified at 18 U.S.C. section 3582 (c)(1)(A)(i), it provides,
(c) Modification of an Imposed Term of Imprisonment.— The court may not modify a term of imprisonment once it has been imposed except that—
(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a reduction;… and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
The Senate Judiciary Committee’s Report on the Sentencing Reform Act explained the need for this provision as follows:
The first “safety valve” applies, regardless of the length of sentence, to the unusual case in which the defendant’s circumstances are so changed, such as by terminal illness, that it would be inequitable to continue the confinement of the prisoner. In such a case, under Subsection (c)(1)(A), the director of the Bureau of Prisons could petition the court for a reduction in the sentence, and the court could grant a reduction if it found that the reduction was justified by “extraordinary and compelling reasons” and was consistent with applicable policy statements issued by the Sentencing Commission.
Congress recognized that many circumstances might arise that could warrant sentence reduction. Instead of elaborating in the statute the possible circumstances, Congress assigned that task to the USSC. The only limitation placed on the Sentencing Commission was a caution that “rehabilitation alone shall not be considered an extraordinary and compelling reason.”
The Senate Report noted, “The Committee believes that there may be unusual cases in which an eventual reduction in the length of a term of imprisonment is justified by changed circumstances. These would include cases of severe illness, [or] cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence.”
The SRA gave federal judges the central decision-making role in compassionate release. First, courts have the authority to decide whether to grant a sentence reduction, even though the exercise of that authority is triggered by a BOP motion. Second, the statute requires the court to consider the factors enumerated in 18 U.S.C. section 3553(a) when making its decision. Section 3553(a), in turn, enunciates factors the courts are to consider at sentencing, including the severity of the crime, criminal history, and the purposes of punishment.
The legislative history underscores the paramount role of the court in compassionate release decisions. “The [SRA] … provides … for court determination, subject to consideration of Sentencing Commission standards, of the question whether there is justification for reducing a term of imprisonment in situations such as those described.”The Senate Judiciary Committee signaled its views of the court’s role even more directly in a later section of its report:
The value of the forms of “safety valves” contained in this section lies in the fact that they assure the availability of specific review and reduction of a term of imprisonment for “extraordinary and compelling reasons”…. The approach taken keeps the sentencing power in the judiciary where it belongs, yet permits later review of sentences in particularly compelling situations.
A Narrow Interpretation of Compassionate Release
In 1994, the BOP published new regulations for the use of its compassionate release authority. The regulations acknowledge that compassionate release could be based on medical and non-medical circumstances. But in practice, and in internal guidance to staff, the BOP sharply limited the grounds for compassionate release to certain dire medical situations.
The 1994 regulations provide that the BOP may bring a motion to reduce the term of imprisonment under 18 U.S.C. section 3582(c)(1)(a) “in particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.” They also delineate the procedures to be followed by the Bureau in responding to prisoner requests for compassionate release. The specified procedures differ according to whether the prisoner presents medical or non-medical grounds for compassionate release.
A July 1994 memorandum from then-BOP Director Kathleen M. Hawk to wardens (Hawk Memo) indicates that in practice, the BOP would not accept non-medical grounds for compassionate release. Instead, it would only seek sentence reductions in end-of-life and certain other grave medical situations:
The Bureau of Prisons has historically taken a conservative approach to filing a motion with the courts for the compassionate release of an inmate.… Until recently, our general guideline was to recommend release of an inmate only in cases of terminal illness when life expectancy was six months or less. Not many months ago, we extended the time limit to a one year life expectancy.… As we have further reviewed this issue, it has come to our attention that there may be other cases that merit consideration for release. These cases still fall within the medical arena, but may not be terminal or lend themselves to a precise prediction of life expectancy. Nevertheless, such cases may be extremely serious and debilitating.
The 1994 regulations do not specify the factors the BOP should take into account in reviewing a prisoner’s request to be considered for compassionate release. The Hawk Memo not only limited compassionate release to medical cases, but it also directed wardens to “consider and balance” in each case a list of factors extraneous to a prisoner’s medical condition, including the nature and circumstances of the offense; criminal and personal history and characteristics of the prisoner; the danger, if any, the prisoner poses to the public if released; and the length of the prisoner’s sentence and the amount of time left to serve. The Hawk Memo made a point of saying these factors were not “criteria” but rather “guidelines,” and even a prisoner who “met a majority of the … factors” might not be appropriate for release. Rather, “staff should rely on their correctional judgment,” documents, and verified information in deciding whether to recommend early release.” It is clear from the Hawk Memo that the BOP considered its job to entail determining whether a prisoner should be given early release—in essence, whether it would recommend that the court order a sentence reduction.
Several of the factors the Hawk Memo assigned for warden consideration mirrored those that Congress had committed to the courts considering a motion from the BOP for compassionate release. For example, courts, consulting 18 U.S.C. section 3553(a), are directed to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” Courts must also review the “seriousness of the offense” and ensure that the decision provides “just punishment” and “protect[s] the public from further crimes of the defendant.” Congress gave no signal to the BOP that it should use those factors in determining which cases it would present to the courts.
In 1998, the Bureau adopted a compassionate release “Program Statement,” an internal version of the 1994 federal regulations. Like the regulations, the Program Statement focused primarily on the procedures the BOP is to follow, and it establishes different procedures for medical and non-medical cases. The Program Statement also includes a section not included in the 1994 regulations that describes the “program objectives” and “expected results” of compassionate release, including that “[t]he public will be protected from undue risk by careful review of each compassionate release request.” These “objectives” and “results” statements, like the list of factors to consider in the Hawk Memo, reflect the Bureau’s view that it could and should incorporate public safety into its compassionate release decision-making process, even though neither Congress nor the 1994 regulations expressly authorized it to do so.
In 2006, the BOP published for public comment in the Federal Register proposed rules regarding compassionate release, stating that the proposed rules reflected its “current policy.” The proposed rules said that a prisoner could be considered for a reduction in sentence motion only if the prisoner “suffers from a terminal illness with a life expectancy of one year or less, or a profoundly debilitating medical condition that may be physical or cognitive in nature, is irreversible and cannot be remedied through medication or other measures, and has eliminated or severely limited the inmate’s ability to attend to fundamental bodily functions and personal care needs without substantial assistance from others (including personal hygiene and toilet functions, basic nutrition, medical care, and physical safety).”
The BOP explained that new rules were needed because it “has received letters and Administrative Remedy appeals from inmates who mistakenly believe that we will consider circumstances other than the inmate’s medical condition for reducing a sentence. Such is not the Bureau’s practice.” The BOP considered the proposed rules a “clarification that we will only consider inmates with extraordinary and compelling medical conditions for [reduction in sentence] and not inmates in other, non-medical situations which may be characterized as ‘hardships,’ such as a family member’s medical problems, economic difficulties, or the inmate’s claim of an unjust sentence.” The Bureau proposed that the title of the rules be changed from “Compassionate Release” to “Reduction in Sentence for Medical Reasons.”
The BOP received strongly critical comments on the proposed regulations from the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums (FAMM), the American Bar Association (ABA), and the Federal Public and Community Defenders, among others. The Bureau then attempted to draft less-restrictive regulations, embracing non-medical criteria—such as that outlined in the Sentencing Commission guideline adopted in 2007—that would reflect the comments it had received. By 2008, it had become apparent to the BOP that they were not going to reach a consensus with DOJ on a revised regulation. New regulations have never been adopted because the DOJ has been unwilling to agree to broader rules than those proposed in 2006.
The United States Sentencing Commission Guidelines
Congress assigned to the USSC the responsibility for fleshing out what would be considered “extraordinary and compelling” reasons for a sentence reduction, but the years passed with no action by the Sentencing Commission.Dismayed at the paucity of motions from the BOP, in 2001 criminal justice advocates like FAMM and the ABA began urging the US Sentencing Commission to issue guidelines that would authorize a broad range of medical and non-medical bases for sentence reduction.
In 2006, the USSC called for public comment on a draft guideline and in 2007 it held hearings. Most of the organizations that provided public comment or testified before the Sentencing Commission supported enabling the courts to make mid-course corrections in sentences for a variety of reasons. The ABA, for example, supported reduction of sentences in exceptional circumstances, both medical and non-medical, including old age, disability, changes in the law, exigent family circumstances, heroic acts, or extraordinary suffering.”
The Department of Justice had a very different view. In a 2006 letter signed by Michael Elston, senior counsel to the assistant attorney general, the DOJ warned the Sentencing Commission against adopting any policy inconsistent with the BOP’s narrow interpretation of compassionate release. “At best, such an excess of permissiveness in the policy statement would be dead letter, because the Department will not file motions under 18 U.S.C. 3582(c)(1)(A)(i) outside of the circumstances allowed by its own policies.”
According to a former DOJ official, the 2006 letter “reflected longstanding Department policy with regard to compassionate release.” The letter expressed the Department’s view that prisoners “should serve an actual term of imprisonment close to that imposed by the court in sentencing subject only to very limited qualifications and exceptions.” The DOJ was willing to accept sentence reductions in certain cases of terminal illness or profound and irreversible incapacity because it believed such limited cases would not undermine the principles of certainty and finality in criminal sanctions that are reflected in the Sentencing Reform Act. The Department also warned that broader guidelines “would be an incitement to prisoners to file more suits seeking to compel the Department to exercise its authority under section 3582 (c)(1)(A)(i)—in contravention of its own policies, judgment, and discretion—in order to get them out of prison before they have served their sentences as imposed by the court.”
At a minimum this would waste the time and resources of the courts and the Department in dealing with meritless suits of this type, concerning an issue which simply should not be open to litigation. The risk also must be considered that some courts might be misled by such a discrepancy between the policy statement and the Department’s standards and practices into misconstruing the assignment of responsibility under the statute for seeking reductions of sentence, and might then enjoin the Department to seek such reductions under more permissive standards.
The DOJ overstated the tension between compassionate release and ensuring finality of judgments. As FAMM pointed out in its response to the Elston letter,
Crafting a [compassionate release] policy statement consistent with congressional intent will hardly subvert the goals of the SRA. Congress specifically provided for a sentence reduction authority for extraordinary and compelling circumstances in the SRA. It included only one specific limitation: rehabilitation alone would not be sufficient. Had Congress been concerned that sentence reductions for extraordinary and compelling circumstances would undermine the goal of determinate sentencing, it would not have specifically provided for such a broad view of the potential reasons for sentence reduction.
In arguing for a strictly limited approach to compassionate release, the Department of Justice’s 2006 letter to the Sentencing Commission displayed a callous pragmatism:
Under the usual mortality in a year standard, the inmate’s imprisonment would be terminated by death within a year or less in any event, so the practical reduction of imprisonment under this standard cannot be more than a year. Nor are the sentencing system and its underlying objectives undermined by seeking reductions of sentence in rare cases for prisoners with irreversible, profoundly deliberating medical conditions…. Such an offender carries his prison in his body and mind, and will not in any event be living in freedom in any ordinary sense if released from a correctional hospital facility to be cared for in some other setting.
In 2007, the USSC issued its guideline for the courts, which essentially restates the statute, with the additional proviso that courts should not release prisoners when to do so would pose a public safety risk. But the real work of the guideline is evident in the application notes that accompany it. Disregarding the exhortations of the DOJ, the USSC recognized a wide range of possible medical and non-medical situations that might constitute extraordinary and compelling reasons for release:
Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the following circumstances:
(i)The defendant is suffering from a terminal illness.
(ii)The defendant is suffering from a permanent physical or medical condition, or is 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 for which conventional treatment promises no substantial improvement.
(iii) The death or incapacitation of the defendant's only family member capable of caring for the defendant’s minor child or minor children.
(iv) 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 (i), (ii), and (iii).
The BOP has never directed its staff to use the USSC guideline as a basis for consideration of prisoner requests for compassionate release. When we asked BOP officials why the agency is unwilling to follow the broader USSC explanation of the kinds of circumstances that might be extraordinary and compelling, they explained that the guidelines are not binding on them. While this may be true as a legal matter, it hardly answers the policy question. They have also noted that the DOJ is unwilling to accept as grounds for compassionate release the breadth of circumstances that the USSC accepts.
II. Compassionate Release in Practice
Compassionate Release Procedures
Procedures may vary somewhat among different Bureau of Prisons facilities, but the basic compassionate release procedure is as follows. The prisoner, or someone on the prisoner’s behalf, makes a request to the warden for compassionate release, asking that the BOP file a motion to reduce his sentence. The governing BOP program statement, Program Statement 5050.46, requires that the prisoner both explain the circumstances he or she believes justify compassionate release and provide proposed release plans that indicate, for example, where the prisoner would reside, where the prisoner would receive medical treatment if needed, and how the prisoner would cover the costs of such treatment. The BOP does not offer or require a special form for the request; ordinarily a prisoner will simply use what is known as the “cop out” form that is commonly used to make any request to staff.
Our communication with current and former prisoners suggests that there is confusion as to the eligibility requirements for compassionate release. The BOP advised us that a copy of Program Statement 5050.46 is available to prisoners via the Electronic Law Library. But that program statement only describes the procedures the BOP will follow; it does not provide any explanation of what the BOP might consider “extraordinary and compelling” reasons for compassionate release. It does not say the Bureau limits motions for sentence reduction to prisoners with terminal illness or other dire medical conditions or that the BOP takes into consideration various extraneous criteria such as public safety, severity of the crime, and community opinion. To the contrary, in the section that directs prisoners to include a release plan with their request for compassionate release, it requires additional information from prisoners whose request is for medical reasons. Prisoners who are directed to the Program Statement can understandably operate under an illusion that the BOP grants compassionate release in non-medical cases.
The prisoner handbooks that each facility provides prisoners with are also of no help to prisoners exploring whether they might qualify for compassionate release consideration. We reviewed handbooks from 10 different randomly selected BOP facilities, and none of them contained any reference to compassionate release.
We asked the BOP if facility staff were responsible for alerting prisoners about compassionate release when they think the prisoner might be eligible. We were told, “staff [are] not tasked with the responsibility for initiating the RIS process. They are tasked with processing the RIS request in accordance with PS 5050.46.” No Bureau staff are responsible for identifying a prisoner or even assisting one who might meet compassionate release criteria—even one who is terminally ill or medically incapacitated and thus unable to do so unaided.
Even getting prison officials to accept a request can be difficult. In one case, a prisoner repeatedly tried to submit a request for compassionate release to the warden when she learned her husband, the only caregiver of their two young children, was dying. She was rebuffed time and time again for a variety of reasons, including that she did not present sufficient reasons, she was lying about her husband’s condition, and she used the wrong form. All in all, it took her 12 attempts made over a month-and-a-half before she was able to get a request to the warden.
Once a request is submitted, the warden reviews the request and makes a decision as to whether it warrants approval. There is no hearing or other required procedure in which the prisoner can orally make a case for release directly to the warden. Although not required by the Program Statement, most federal prison medical centers (which receive the bulk of compassionate release requests) have a multi-disciplinary staff committee appointed by the warden that reviews prisoner requests and then makes a recommendation to the warden. The committee considers the prisoner’s medical or other circumstances prompting the request for sentence reduction, the prisoner’s criminal history and institutional record, and the prisoner’s proposed release plan. It then prepares a memorandum for the warden summarizing this information and providing its recommendation. At some point in the process, the US Probation Office takes steps to make sure the release plans are satisfactory, including sometimes visiting the place to which the prisoner would be released and talking with family. The office may also consult with other stakeholders in the community, such as victims who have asked to be notified.
If the warden decides the prisoner’s request warrants approval, he or she sends a referral packet of information to the appropriate BOP regional director. If the request is approved by the regional director, he or she then sends it to BOP headquarters, where it is reviewed by the Bureau’s general counsel. If the general counsel decides a request is not medically warranted, he or she will deny the request. The general counsel seeks the opinion of the BOP medical director if it is a medical case or that of the assistant director of the Correctional Programs Division if it is a non-medical case.
Although not required by the Program Statement, the general counsel also notifies the office of the US deputy attorney general regarding requests for sentence reduction that do not involve terminal illness and consults with the US attorney in the district in which the prisoner was sentenced to see if there are concerns regarding a sentence reduction. From January 1, 2011 to November 15, 2012, the BOP sent 11 non-terminal cases to the office of the deputy attorney general. A motion was filed for sentence reduction in all 11 cases. The general counsel’s office may also contact other stakeholders it thinks might be concerned about the possible early release of an individual prisoner.
The general counsel sends to the BOP director all requests that he or she recommends be approved. The director makes the final decision on whether to approve the request. If the director agrees to seek a reduction in sentence, the general counsel’s office drafts the motion and asks the US attorney in the district in which the prisoner was sentenced to file it. In 2011, the district courts granted every motion submitted on behalf of the BOP.
When a prisoner’s request is based on a medical condition, staff at all levels are required by regulation “to expedite” the request, but the BOP has not adopted specified time limits for compassionate release decisions. If the warden denies the prisoner’s request, the prisoner may appeal through the standard BOP administrative remedy process.
Human Rights Watch visited the Federal Medical Center (FMC) at the Butner Federal Correctional Complex in Butner, North Carolina (FMC Butner), a medical facility for men and the BOP’s oncology center, on July 30, 2012. We talked with prisoners and staff who explained the process by which requests for medical release are handled at the facility.
When a prisoner makes a request based on medical grounds (as is usually the case), the prisoner’s primary care physician is asked to make a diagnosis and prognosis (how long the prisoner has to live, in the case of terminal illness). When the prisoner has cancer, the facility’s Tumor Board will make that diagnosis and prognosis. If the Tumor Board determines that the prisoner is medically eligible for sentence reduction (that is, he is within 12 months of death or physically incapacitated), a social worker consults with the prisoner regarding a plan for release. The prisoner’s medical condition and the release plan information are then discussed at a meeting of the seven-person interdisciplinary Reduction in Sentence Committee (RIS Committee) appointed by the warden to review prisoner compassionate release requests. During its review, the RIS Committee not only considers the prisoner’s medical condition but also the nature of the offense, impact on victims, conduct relevant to the offense, length of sentence imposed and served to date, family history, prior criminal history, and institutional adjustment. Neither the committee nor individual members of the committee meet with the prisoner to discuss his past, his time in prison, his possible rehabilitation, or his likelihood of re-offending given his current condition. Nor do they solicit the views of the prisoner in writing or give him an opportunity to rebut or explain any concerns they might have.
The committee members discuss whether they think extraordinary and compelling reasons exist to warrant a sentence reduction, and then they vote. Judy Pyant, a social worker at FMC Butner who is also chair of the RIS Committee, told Human Right Watch that the committee members have never had any training or been shown any materials as to what constitute “extraordinary and compelling” reasons for compassionate release. The committee is not given rules or guidance from the warden or other senior BOP officials regarding how to assess the information presented to them or what specific questions they should attempt to answer before reaching a decision. Committee members do not necessarily have any experience in judging public safety risks or likelihood of recidivism, nor do they use a validated risk assessment instrument. They are left to deliberate uncharged and undirected, bringing their own subjective views and concerns to the table. According to Pyant, “extraordinary and compelling” can mean something different to each committee member.
Committee members vote by writing down their conclusion and a brief statement of their reasoning on a slip of paper. The majority vote wins and is reported to the warden in a memorandum that summarizes the prisoner’s medical situation, criminal history, and victim impact. It concludes with a sentence or two regarding the reasons the committee believes the prisoner should or should not be recommended for compassionate release. Minority views, if there are any, are not reflected in the memorandum.
The warden is not bound by the committee’s vote. Warden Sara Revell told us that she could agree with the committee’s recommendation for the same or completely different reasons from those suggested by the committee, and she did not need to explain her position. Memoranda we have seen denying prisoners’ requests for compassionate release consideration typically are drafted by the committee, and the warden writes “I concur” across the bottom (see appendix for examples of memoranda by the RIS Committee and signed by the warden). According to Warden Revell, she rarely disagreed with the committee when it voted that a prisoner’s request be approved, but she was more likely to do so when it voted against the prisoner’s request.
Compassionate Release: The Numbers
We do not know how many prisoners seek compassionate release, because the BOP Central Office does not maintain records of requests denied by wardens. It only maintains records of requests that were granted by wardens and hence—pursuant to BOP rules—subsequently reviewed in the Central Office, or of prisoners’ appeals to the Central Office of denials of administrative remedies by the warden or regional director.
The General Accounting Office (GAO) recently concluded that the BOP exercises its authority to seek a judicial reduction of prisoner’s sentence “infrequently.” Between 2000 and 2011, the BOP’s Central Office reviewed 444 requests by prisoners for compassionate release that had been approved by wardens and regional directors and approved 266, or 60 percent. Over 21 years, from 1992 through November 2012, the BOP made only 492 motions for compassionate release, an annual average of about two dozen.
In 2011, the BOP made 30 motions for sentence reduction, out of 38 requests received in the Central Office, filed by 37 prisoners (one filed a second request). Thirty of the requests came from prisoners who were terminally ill; the BOP director approved 25 of them. Five of the requests came from prisoners with medical conditions other than terminal illness, and the director approved all five. There were two cases appealed to the Central Office in which prisoners sought compassionate release for non-medical reasons.
Both were denied. As of November 15, 2012, the BOP had made 37 motions for compassionate release, all on medical grounds.
Not only is the number of motions for sentence reduction extraordinarily small given the size of the BOP population, but it has not grown commensurate with the growth in the number of federal prisoners. As shown in Figure 1, in 1994, the BOP housed 95,034 prisoners and made 23 motions for sentence reduction. In 2011, even though the federal prison population had more than doubled to over 218,170, it made only 30 motions.
Figure 2: FMC Butner – Requests for Reduction in Sentence, 2011
This figure was prepared by the BOP. Data is for prisoners at the federal prison complex at Butner, North Carolina.
The BOP has provided us compassionate release data from 2011 for the federal prison complex at Butner, North Carolina, which includes a large federal medical center. While the Bureau does not track prisoner requests to wardens that are not approved or appealed, the Butner data provided to us included prisoner request numbers. This data highlights the vast difference between the number of prisoners who sought compassionate release and the number whose requests the BOP director ultimately approved.During 2011, 164 prisoners initiated the reduction in sentence process by making a request to the warden. As shown in Figure 2, only 66 of them were considered in meetings by the Reduction in Sentence Committee, which reviews prisoner requests and makes recommendations to the warden; the remaining prisoners were deemed ineligible for consideration because they were “not medically warranted” (meaning they did not have a sufficiently terminal or grave medical condition), had detainers from other jurisdictions (which precludes motions for sentence reduction), or had died before the committee could consider them.
Figure 3: FMC Butner – Warden Decisions on Reduction in Sentence Requests, 2011
This figure was prepared by the BOP. Data is for prisoners at the federal prison complex at Butner, North Carolina.
As shown in Figure 3, of the 66 cases that were reviewed by the Reduction in Sentence Committee and then sent to the warden, the warden denied 12 on the grounds that early release might jeopardize public safety. The warden approved 15 of the remaining 54 requests and forwarded them to the regional director. Seventeen requests were pending a decision, and 22 prisoners died while awaiting the warden’s decision.
Of the 15 requests the warden sent to the regional director, all were approved. The BOP director subsequently approved 12 of the 15 forwarded by the regional office; two were denied because they were “not medically appropriate for consideration,” and one prisoner was denied because he “posed a risk to the community.”
In short, out of the 147 requests made by prisoners at FMC Butner in 2011 (not including the 17 in which decisions from the warden were still pending at the close of 2011), 12 were ultimately approved by the director as suitable for a motion for sentence reduction, where the prisoner had not died before that approval. Reflecting the gravity of their conditions, 22 prisoners who requested compassionate release in 2011 died while still behind bars.
Victor Elliott (pseudonym), age 47, entered federal prison on November 9, 2010 to serve a twenty-year mandatory minimum sentence for being part of a heroin distribution conspiracy that resulted in the deaths from overdose of three people. The conspiracy included Elliott, a former heroin addict himself, and two other people whose only connection was that they bought drugs for resale from the same wholesaler. Elliot was directly responsible for the accidental overdose death of one person to whom he provided the drugs; he denies any involvement with the other dealers or the deaths of their clients. Currently confined at FMC Butner, Elliott has an inoperable malignant brain tumor—“the size of a golf ball”—which did not respond to chemotherapy and radiation. According to the Butner oncologist, Elliott has less than a year to live. He also has two ruptured discs in his lower back, is confined to a wheelchair, has problems moving his left arm and leg, and suffers chronic severe headaches. He apparently spends much of the day asleep. He has a sister who is willing to act as his caretaker and who provided plans to ensure he received appropriate medical care.
Elliot sought compassionate release at the recommendation of his oncologist. Although he is close to illiterate, and “can’t spell worth a darn,” none of the staff helped him with his application. On January 12, 2012, the Reduction in Sentence Committee reviewed Elliott’s request. The committee’s memorandum recounts information contained in Elliott’s Presentence Investigation Report, including the overdose deaths of people caused by drugs they bought from Elliott’s “co-conspirators.” The committee also cited Elliott’s prior drug and battery convictions and details about other-drug related activities by Elliott. There is no discussion, however, about whether Elliott would be likely to rejoin the drug business given his brain cancer and confinement to a wheelchair or whether his expressed desire to spend his remaining months of life with his family and to make amends with his granddaughter is genuine. Although the committee acknowledged that Elliot had a poor medical prognosis, it concluded that his request should be denied because, “due to the severity of your crime and the fact that you have only served a small portion of your sentence, the committee expressed concerns about the possibility of your ability to re-offend.” The warden concurred with the committee’s recommendation on January 19, 2012.
III. Federal Policies on Compassionate Release
“I urged more release for older, chronically ill offenders who couldn’t fight their way out of a paper sack, but the Central Office was simply not interested.”
– Joe Bogan, former BOP official who retired in 2000 after 17 years as a federal warden, telephone interview, July 15, 2012
It is unclear why the Bureau of Prisons adopted criteria that guarantee that only a paltry number of motions for sentence reduction will be filed each year. We believe the view that few prisoners should benefit from compassionate release is deeply rooted in the BOP’s history and institutional culture and reflects the preferences of the Department of Justice, of which the BOP is a part. BOP Assistant Director and General Counsel Kathleen Kenney told us the Bureau’s philosophy has long been that compassionate release should be used sparingly, although she could not tell us the origins of that approach.
The BOP has been able to take a restrictive approach to compassionate release because Congress never specified the criteria it should use. The Department of Justice has taken the position that the BOP has unfettered bureaucratic discretion with regard to compassionate release because Congress statutorily committed the task of filing motions for compassionate release in court to the BOP and did not specify in the statute the circumstances under which the BOP should do so. According to the DOJ,
[W]hile “extraordinary and compelling reasons” are a permissible basis for the Director of the Bureau of Prisons to make a motion to reduce the term of imprisonment of an inmate, Congress has not specified what reasons or criteria the Bureau must consider in making this determination. Rather, this determination is within the discretion of the Director.
In practice, the BOP decides for itself what the criteria for compassionate release should be, ignoring the Sentencing Commission’s guidelines, and it takes into consideration any factors it chooses, including those that Congress told the courts to consider.
As a constituent component of the DOJ, under the direction and supervision of the deputy attorney general, the BOP does not adopt or pursue policies inconsistent with those of the DOJ, nor does it promulgate official regulations without going through a DOJ review and approval process.
Deputy Attorney General James Cole declined to meet with us for this report, or to assign other staff from his office to do so. Instead of answering our written questions to him about the Department’s guidance to the BOP with regard to compassionate release policy and its views concerning the role of compassionate release in the federal criminal justice system, he had the BOP send us a letter that offered little insight into the DOJ’s thinking. (Our letter to the deputy attorney general and the response from the BOP on behalf of the deputy attorney general are reproduced in the appendix). Practitioners and others knowledgeable about the Bureau’s recent practice indicate that the DOJ’s approach to compassionate release remains the same as reflected in the 2006 Elston letter.
It is not surprising that the DOJ would want BOP motions for sentence reduction restricted to very few cases. As Glenn Fine, former inspector general for the DOJ told us, “a prosecutorial perspective permeates the institution.” Paul McNulty, former deputy attorney general, agreed that the Department’s institutional culture is one in which a “law enforcement and prosecutorial perspective” tends to predominate. As Rachel Barkow, a law professor who has studied the DOJ, recently wrote,
The dominance of law enforcement interests at the Department is a reflection of the dominance of law enforcement interests in the politics of criminal justice…. 313ot only do [prosecutors] have an interest in longer sentences and mandatory punishments; they also have an interest in opposing corrections reforms that make the conditions of confinement more relaxed or that result in earlier release times.
In addition to its influence on compassionate release policy, the DOJ can affect BOP decisions in individual cases. When the BOP is reviewing a prisoner’s request for a sentence reduction, it consults with the US attorney in the judicial district in which the prisoner was sentenced. “The Bureau considers the information provided by the United States Attorney’s Office in making a decision regarding a [reduction in sentence] request.” According to BOP Assistant Director and General Counsel Kenney, in most cases the US attorney raises no objection about compassionate release cases. But if there is a conflict, it must be resolved before the BOP director approves a motion. In non-terminal cases for compassionate release—for example, one in which the prisoner has a non-terminal illness or is seeking compassionate release on non-medical grounds—if the BOP director is considering approval of the recommendation, the case will be sent to the office of the deputy attorney general first, before the BOP director makes a final decision. The Bureau was not willing to describe even in general terms deputy attorney general communications to the BOP in such cases.
Determinations regarding medical eligibility, such as whether a prisoner is within twelve months of dying, are made by BOP medical staff. But beyond the confines of medical determinations, there is little guidance, and thus much room for inconsistency, subjectivity, and even arbitrariness in decisions regarding whether to bring motions to the court for compassionate release.
Wardens are the pivotal figures in the compassionate release process because their decisions to not recommend approval of prisoner requests are almost never overturned. Their “no” becomes the BOP’s “no.” On the other hand, senior officials may and do deny cases wardens have recommended. BOP data from 2000 through 2011 indicate that the BOP Central Office denied prisoner requests in 40 percent of the cases the wardens and regional directors recommended for approval.
The BOP provides scant training to wardens on how to exercise their discretion and little oversight of their decision-making. If a warden wants to deny a prisoner’s request for compassionate release consideration because he believes the prisoner’s crime is heinous, there are no BOP instructions or guidance that tell him such beliefs should not play a role in his decision. Our interviews with former and current wardens suggest that while wardens learn from “experience” and familiarity with the BOP institutional culture what prisoner circumstances the Central Office is likely to consider worthy of sentence reduction, their approach to individual cases varies. A former warden, for example, told us he approved every request from a prisoner who met the medical criteria for terminal illness or incapacitation, even if he assumed it would be rejected by his superiors.
Former warden Joe Bogan told us he did not want to “waste his superiors’ time” by sending them cases he knew they would deny. But sometimes the Central Office did reject cases he had recommended. He recounted the case of a young woman serving time for minor drug dealing who developed ovarian cancer. He approved her request for compassionate release and forwarded it up the chain of command. The Central Office turned it down because of the possibility she might re-offend. Bogan thought the decision was “ridiculous.” A few months later, the woman died behind bars.
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