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March 7, 2018

Another sad account of how US Bureau of Prisons administers compassionate release program

The Marshall Project and the New York Times have this lengthy new piece about the ugly administration of the federal compassionate release program by the US Bureau of Prisons. At the Marshall Project, the piece has this full headline summarizing its content: "Old, Sick and Dying in Shackles: 'Compassionate release' has bipartisan support as a way to reduce the federal prison population and save taxpayer money. New data shows that it’s rarely used." Here are excerpts:

Congress created compassionate release as a way to free certain inmates, such as the terminally ill, when it becomes “inequitable” to keep them in prison any longer.  Supporters view the program as a humanitarian measure and a sensible way to reduce health care costs for ailing, elderly inmates who pose little risk to public safety.  But despite urging from lawmakers of both parties, numerous advocacy groups and even the Bureau of Prisons’ own watchdog, prison officials use it only sparingly.

Officials deny or delay the vast majority of requests, including that of one of the oldest federal prisoners, who was 94, according to new federal data analyzed by The Marshall Project and The New York Times.  From 2013 to 2017, the Bureau of Prisons approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody. The bureau’s denials, a review of dozens of cases shows, often override the opinions of those closest to the prisoners, like their doctors and wardens.

Advocates for the program say the bureau, which oversees roughly 183,000 inmates, denies thousands of deserving applicants. About half of those who died after applying were convicted of nonviolent fraud or drug crimes. “It makes sense to release prisoners who present very little danger to society. It’s the humane thing to do, and it’s the fiscally responsible thing to do,” said Senator Brian Schatz of Hawaii, a Democrat. “The Bureau of Prisons has the theoretical authority to do this, but they basically do none of it.”

Case files show that prison officials reject many prisoners’ applications on the grounds that they pose a risk to public safety or that their crime was too serious to justify early release. In 2013, an inspector general reported that nearly 60 percent of inmates were denied based on the severity of their offense or criminal history. The United States Sentencing Commission has said that such considerations are better left to judges — but judges can rule on compassionate release requests only if the Bureau of Prisons approves them first.

Late last month, Schatz introduced legislation — co-sponsored with Senators Mike Lee of Utah, a Republican, and Patrick Leahy of Vermont, a Democrat — that would let prisoners petition the courts directly if the bureau denies or delays their requests.

Many are turned down for not meeting medical requirements. [Kevin] Zeich, who was serving 27 years for dealing methamphetamine, requested compassionate release three times, but was repeatedly told he was not sick enough. On his fourth try, his daughter, Kimberly Heraldez, finally received a phone call in March 2016 saying her father would soon be on a plane, headed to her home in California. Early the next morning, she was awakened by another call. Her father had died....

Compassionate release dates back to an overhaul of federal sentencing laws in the 1980s. While abolishing federal parole, Congress supplied a safety valve, giving judges the power to retroactively cut sentences short in “extraordinary and compelling” circumstances. But a court could do so only if the Bureau of Prisons filed a motion on an inmate’s behalf. For years, the agency approved only prisoners who were near death or completely debilitated. While nonmedical releases were permitted, an inspector general report found in 2013, not a single one was approved over a six-year period.

The report said the program should be expanded beyond terminal illness cases and used more frequently as a low-risk way to reduce overcrowding and health care spending. The Bureau of Prisons widened the criteria to explicitly include inmates over 65 and those who are the sole possible caregiver for a family member.  Then Attorney General Eric H. Holder, Jr., promoted the changes as part of his “Smart on Crime” initiative to “use our limited resources to house those who pose the greatest threat.

”But the bureau, which is part of the Justice Department, has yet to fully embrace those changes. Of those inmates who have applied for nonmedical reasons, 2 percent (50 cases) have been approved since 2013, according to an analysis of federal prison data.  And although overall approval numbers increased slightly between 2013 and 2015, they have since fallen.

At a 2016 sentencing commission hearing, Bureau of Prisons officials said they believed the program should not be used to reduce overcrowding.  And even the principal deputy assistant to Holder, Jonathan Wroblewski, said the program was not an “appropriate vehicle for a broad reduction” in the prison population.  “Every administration has taken the position that part of our responsibility is to ensure that public safety is not undermined,” he said.

After the hearing, the commission released new guidelines encouraging prison officials to determine only whether inmates fit the criteria for release — that is, if they are old enough, sick or disabled enough, or if they are the sole possible caregiver for someone on the outside. Whether the prisoner poses a risk to the public should be left to a judge to decide, the commission said.

Mark Inch, who was appointed director of the Bureau of Prisons by Attorney General Jeff Sessions last August, has made no public statements about the program. The bureau declined to make Inch available for an interview and did not respond to emailed questions.

As this article indicates, there are bills now pending in Congress that would in various ways address deficiencies in the current compassionate release mechanisms. This is on of many reasons I am hopeful (but not optimistic) that folks on both sides of the aisle in Congress will try hard in the coming weeks to get at least some form of prison reform legislation to Prez Trump's desk. A revised and expanded compassionate release mechanism could and should help hundreds, perhaps thousands, of federal prisoners, particularly those who have likely already served a very long time in federal prison and who pose little or no risk to public safety.

A few recent of many prior related posts:

March 7, 2018 at 10:43 AM | Permalink


“Every administration has taken the position that part of our responsibility is to ensure that public safety is not undermined,”

Public safety is hardly undermined by releasing an 85 year old suffering from cancer, dementia, and incontinence.
The BOP will never give up power because its interest is to keep as many persons imprisoned for as long as possible to justify its budget.

As I (and many others) have argued for years, one practical solution is for Congress to authorize judges to grant early release on motion of defense attorneys or U.S. Attorneys (yes, I've known many U.S. Attorneys who act compassionately). Such motions would have to meet the current, strict statutory criteria. Law clerks could weed out the ones that do not qualify on their face. Those that qualify should go to the judge (or designated magistrate) who could deny or grant it outright, or hold a telephone hearing. Don't tell me about the federal judges being too overloaded to do this. This is their job, and this task is as important as anything else they do.

Posted by: Michael R. Levine | Mar 7, 2018 1:59:47 PM

Michael. You are compassionate. You want to kick out prisoners in prison for decades to the street. Is that compassionate?

In my experience, that is what will happen. There are no case managers in prison, to arrange for responsible placement of disabled prisoners.

Posted by: David Behar | Mar 7, 2018 3:37:51 PM

Mr. Behar, under current rules, folks can be granted compassionate release only if they have home to go to. No one advocates a change in this rule.

Posted by: Michael R. Levine | Mar 7, 2018 7:00:31 PM

Mr. Levine. What fraction of prisoners have a home to go to, with caretakers to provide full personal care, 24 hours a day? Can these caretakers, at least be paid?

Posted by: David Behar | Mar 7, 2018 9:37:35 PM

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