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October 27, 2008

Re-examining compassionate release

One important sentencing topic that rarely gets enough scholarly consideration is the legal doctrines that permit "compassionate release" for prisoners under certain limited circumstances.  I was thus surprised and pleased to discover this new paper on SSRN by William Berry, titled "Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate Release."  Here is the abstract:

Federal law, unbeknownst to many, includes a provision that permits the immediate release of federal prisoners. This safety valve provision requires that the Director of the Bureau of Prisons make a motion on behalf of the prisoner in order to secure the prisoner's compassionate release. Far from being a veiled version of parole, this compassionate release provision is to be used only in circumstances deemed "extraordinary and compelling."  While the Bureau of Prisons has read this language very narrowly for many years, considering only terminally ill inmates as candidates for compassionate release, the Sentencing Commission modified its Guideline commentary in November 2007, defining for the first time criteria for determining what should be deemed "extraordinary and compelling."  Specifically, the Commission's guidelines provide that extraordinary and compelling circumstances can include: (1) terminal illness, (2) debilitating physical conditions that prevent inmate self-care, and (3) death or incapacitation of the only family member able to care for a minor child.

This article considers the theoretical justifications for compassionate release in an attempt to develop a framework to evaluate what circumstances rise to the level of "extraordinary and compelling."  First, the article argues that the State's purposes for punishment, whether retributive or utilitarian, do not by themselves justify the compassionate release of inmates.  As a result, this article proposes that the basis for compassionate release should lie in the broader interests of the State.  Thus, this article argues that the non-penal interests of the State (in light of the "extraordinary and compelling" factual circumstance) must clearly outweigh the State's penological interest in the inmate serving his/her entire sentence before compassionate release may be justified.

October 27, 2008 at 03:17 PM | Permalink


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I think this article is timely because it raises an interesting issue in light of the conviction of Senator Stevens. At what point in time is there compassionate sentencing. I mean that not in the bleeding heart sense, but in the sense of taking into account a person's age and physical fitness before sentencing. This seems to be a pressing issue as more and more people who are elderly seem to be convicted/committing crime. Should a person be put the person in prison and then immediate apply for compassionate release. Should they even be put in prison to begin with.

It is one thing when a person becomes terminally ill in prison, another thing when they are terminally ill before sentencing.

Posted by: Daniel | Oct 27, 2008 4:42:27 PM

I am a Univ. of Virginia law School graduate, who finished serving 7 2/3 years in federal prison and was released in September 2007. During my time at U.S. Penitentiary-1, Coleman, Florida, I became familiar with Applications for Compassionate Release. The problem with them in recent B.O.P. history is that they take too long to process, by which time the usually terminally ill inmates have already died. The Applications must be reviewed and appproved by 1) the Warden; 2) the Regional Director; 3) the Director of the B.O.P. [Harley Lappin], B.O.P. General Counsel and Chief B.O.P. doctor.
I wrote an Application in the late summer/early Fall of 2005 for a man who had been told he was the longest serving inmate in the entire B.O.P. He had been incarcerated since June 1964, and died in September 2005, after serving more than 41 years (except for 13 days of parole in 1993, during which he and his brother committed an armed bank robbery)! I was about 2 years old when he began his federal prison "career". By August 2005, he couldn't walk and was in a wheel chair. He was terminally ill with cancer, which had metasticized throughout his abdominal and thoracic cavities. Following his diagnosis, and terminal prognosis, the Warden told him to get someone to help him prepare an Application for Compassionate Release (the inmate was illiterate), and he would approve it and forward it to the Regional Director. The inmate's proposed "Release Plan" (which must be set forth in the Application) was that he would live with his sister-in-law (his brother was deceased) in a small town in East Tennessee. He met me in his wheel chair in the prison law library after dinner one night. In 2 hours of consulting the Code of Federal Regulations, asking questions of the applicant and typing, I completed the Application. The Warden approved it and mailed it off to Atlanta within a few days, but it was too little, too late. Within 3 weeks, the inmate had died and his Application became moot. He died in his sleep, hanging off his bottom bunk onto the floor of his cell. His cell mate found him upon awakening [Penitentiary inamtes are locked in their cells at night between 10:30 p.m. and 6:00 a.m.]. Work call was delayed that morning, so that the B.O.P. could remove his body. The Coroner and the Warden came to his Unit, and the inamte's body was removed thru the back hallway into the Unit, so that the other inmates wouldn't see it. Some inmates get angry if they see the bodies of inmates who have passed away. This is not an academic concern in a Federal penitentiary, where two-thirds of the inmates have life sentences, so a majority will die in prison too. In the years since the War on Drugs began in the 1980s, the B.O.P. has granted very few Applications for Compassionate Release. It is about time they reviewed these procedures and liberalized them a little bit, so that inmates can die with their families, at home, and save the taxpayers the cost of embalming and transporting the bodies to the inmate's families. With the B.O.P., there is always a cost angle to any apparant compassion.

Posted by: Jim Gormley | Oct 27, 2008 10:36:18 PM

Jim - Thanks for your excellent comment. Hopefully what you say, which has been 100% true for years, will soon be changing. The compassionate release statute, 18 USC 3582(c)(2), is not limited to terminal illness cases; that is just BOP's unreasonable interpretation of it. The statute requires BOP to consider any Sentencing Commission policy guidance on the subject. While the Commission ignored this opportunity for nearly 20 years, thanks to heroic efforts by the ABA and FAMM (both led it this campaign by former US Pardon Atty Margaret Colgate Love) there is now a Policy Statement in the Guidelines Manual on the subject -- hence, the recent article discussed by Doug in the post above. Hopefully, the BOP is already starting to follow (as it is required to) the USSC's new advice to broaden the criteria and grant these releases more freely.

Posted by: Peter G | Oct 28, 2008 10:41:20 AM

The BOP has a very odd policy, I have a friend who has sentenced to 360 months, on a non violent drug charge. 18 years into his sentence, he is the poster child for the USSC 2007 EXTENDED/clarified application notes. You need to fit 1 of the 4 criteria and he fits 3. So after presenting the BOP with a legally drawn up and submitted "request" for consideration for a compassionate release, the BOP will not even answer us.

The paper work was draw up by an attorney, and presented to the warden, the medical director, region and Washington all at the same time. After waiting months for a response, I was advised buy one of the folks in DC that works for the BOP (name withheld) to go through the administrative remedy procedure. Which takes months. I did. It was at best humorous, EXCEPT the fact it was real.

The warden at Coleman denied the BP-9 stating there was no BP-8 filed, which was completed only as an exercise, (it is NOT be a matter to take up with a consoler as the consoler advised when supplying the BP-9 paperwork, see you have to get it from a consoler).

So we sent the BP-10 to Region (which is Atlanta, in this case) the entire package came back; the compassionate release request we sent, close to 23 pages of evidence (all from the BOP officials including medical and an prior warder as well as a BOP attorney and an ISI guy) supporting the request and a release, the BP-9 (which was the page directly behind the denial) Now here is the rub, the reason the BP-10 was denial stated there was no BP-9 filed. I still have the original package, with the government STAPLE. I sat for 3 days wondering what I was missing. I brought it to my lawyer, he did the same thing. Nothing was missing.

OH YEAH, Washington did the same thing with the BP-11; denied "no BP-10" filed. Stoned or stupid?

So I am sitting here sick to my stomach, just wondering how the heck the executive branch can ignore the Judicial Branch. Well, the good news is......we filed with the sentencing court, a writ of mandamus....in the judges response, the Judge states my friend does satisfy the criteria for a compassionate release. The rub was jurisdiction, we re-filed hopefully satisfying the courts jurisdictional issues. The US prosecutor has until 11/12 to answer.

So to shed some light on this mess; NO! THE BOP IS NOT DOING IT LAWFUL DUTY. The "duty' is to bring the change in circumstance that fit the USSC "application notes" to the ATTENTION of the sentencing court, the BOP can not reduce a sentence, ONLY the court. For the BOP to withhold "illegally" this "duty" is inconceivable. At this point, the BOP becomes a sentencing body, not authorized.

Posted by: mbrizio | Nov 7, 2008 10:09:32 PM

Well, in case anybody really cares, the USSC should have used my puppies milk teeth, because they had a whole lot more bite then the changes that were made in regards to "Compassionate Release". The changes were illusory at BEST, a down right waste of time and TAX DOLLARS. The SDNY just said they have no jurisdiction and only the director of the BOP can move. The BOP will not even answer our request, all we asked for in court was an answer. So NOTHING has changed, when are Americans going to wake up. This is not an academic exercise, there are 1 in 100 people in custody. The DOJ said it was a "dead letter" and courts are going along with it. Guess they win, forget The US Congress (who passed the changes, they could have just taken a long lunch that day), the USSC and anyone else who tries to help sick and dyeing prisoners. Which, many are sentenced under draconian drug laws. The president of the US admitted to as much as half these people are locked up for??? In the above case a 30 year sentence for drugs, no guns no violence. This man is now sick and old, so pony up kids and keep paying for his mis-care .

Posted by: Mbrizio | Jun 29, 2009 9:23:39 PM

I found this very interesting. I am a Paralegal. My Dad was dianosed with cancer in 2008 while incarcerated.He passed on December 26,2010. The process for compasasionate release is horrible and the health care that the prisoners receive is horrible. My father died in prison and no one notified me that he had only hours to live. I was notified after his death. There was a power of attorney and contact information. anytime I called the prison I was given the run arounds,limited or miss information.I do agree that the inmates should be released to willing family so that they can flip the cost of that inmate. Now I am going through the process to try and get my Dad's remains so I can give him a burial. Not a happy time. I wish he could have spent his last days with his children and Grandchildren before dying in a cold hospital prison cell. Can someone please explain to me what is a compassionate release? There was no compasion in my situation.

Posted by: angela fowler | Dec 29, 2010 8:55:23 PM

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