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May 25, 2012

Effective commentary urges greater us of "compassionate release"

Julie Stewart, the president and founder of FAMM (Families Against Mandatory Minimums), has this effective new commentary at The Crime Report headlined "Let’s End the ‘Death Rattle’ Rule." Here are excerpts:

It is easy for most Americans to identify ways in which the government wastes money, but it is not often you come across a federal program that is both wasteful and cruel. The Federal Bureau of Prison’s (BOP) “compassionate release” program fits the bill.

Some background will help. When Congress passed the landmark Sentencing Reform Act of 1984, in the interest of “truth in sentencing” it abolished parole at the federal level and eliminated all but a few opportunities for a judge to revisit and shorten a sentence once it had become final.

One little-known opportunity permits courts to order the immediate release of prisoners in “extraordinary and compelling” circumstances. Although Congress did not restrict this opportunity to situations where an inmate was in grave medical condition, the relief — which became known as “compassionate release” — was limited to such cases.

But, and this is important, a judge cannot act unless the BOP asks the court for the sentence reduction. Before 1994, the BOP would only file motions in court to release terminally ill patients with less than six months to live. It did not matter if the inmate was bedridden or suffered from advanced dementia, or how many taxpayer-funded medical services he required.

In 1994, the BOP slightly broadened its qualifications to include those with a terminal illness and less than a year to live, but it made no difference. BOP’s macabre standard became known as “the death rattle rule,” as in, no death rattle, no release. Despite the wider standard, during the 1990s, an average of 21 inmates a year received compassionate release, a figure that represents 0.01 percent of the federal prison population.

Sentencing reform groups, including Families Against Mandatory Minimums (FAMM), were dismayed by BOP’s cruel administration of the compassionate release program. The Bureau’s nonsensical stinginess resulted in families being kept from their incarcerated loved ones when they died, and in taxpayers footing the bill for extraordinary, end-of-life health care expenses that could have been shouldered by inmates or their families.

In 2007, the U.S. Sentencing Commission adopted sentencing guidelines to broaden eligibility for the compassionate release program. The Commission’s amendment was an overdue but straightforward interpretation of the Sentencing Reform Act. It interpreted to the Act’s “extraordinary and compelling circumstances” to include, but not be limited to, instances where: (1) the inmate is suffering from a terminal illness; (2) he is suffering from a permanent physical or mental health condition that prevents him from caring for himself and from which he is not expected to improve; and (3) the death or incapacitation of the inmate’s only family member capable of caring for the inmate’s minor children.

The BOP responded to this not-too-conservative, not-too-liberal interpretation by promptly ignoring it. Instead, it has continued to follow its grisly death rattle rule.

Nothing has changed. The rate of compassionate release motions filed by the BOP from 2000 to 2001 is the same as it was during the 1990s: an average of just 21 per year. In roughly 24 percent of those motions, the inmate died before the district court even had a chance to rule on the motion. Even the “lucky” ones are often forced to spend their final days fighting the BOP bureaucracy. Under the BOP’s rules, nearly every layer of the bureaucracy gets a chance to say “no” to an inmate seeking compassionate release....

The need for compassionate release is only going to grow. First, the number of older prisoners has increased by 750 percent nationwide over the last two decades. Second, the BOP is already suffering from severe overcrowding; its facilities are operating at 138 percent of capacity.

Lastly, Congress is facing a massive budget problem. Though it is asking agencies to look everywhere for cuts, the BOP is seeking an increase of more than $80 million to activate two new prisons. Even if administered correctly, the compassionate release program cannot solve BOP’s overcrowding problem or Congress’s budget challenges, but it can help.

Taxpayers need not subsidize expensive medical services for inmates who pose no threat to public safety. Ultimately, however, we need to expand the compassionate release program to save more than money. We need to do it save our nation’s soul.

May 25, 2012 at 08:10 AM | Permalink


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In 1988, there was a significant shiver that assaulted the nation's soul. We have yet to shed the fear of Willie Horton or, as regard's Julie's morally and fiscally correct plea, the fear of unleashing a Willie Horton.

Posted by: alan chaset | May 25, 2012 8:37:33 AM

'Ultimately, however, we need to expand the compassionate release program to save more than money. We need to do it save our nation’s soul.'
So we need to release murders and other violent offenders in order to save our souls.Because if a murder is dieing that in some way mitigates the crime that put them in prison to begin with. Some magic wand is waved that makes the murder suddenly okay.
If you want to release non-violent criminals to make room. Okay, at some level I would agree. But violent criminals should serve their entire sentence. Period.

Posted by: jim | May 25, 2012 12:59:34 PM

The prison-industrial complex has a vested intersts in keeping as many persons incarcerated for as long as possible.

Posted by: anon13 | May 25, 2012 1:49:25 PM

I may have the only personal experience with this issue of anyone who will write a comment on this blog. I was a practicing lawyer before going to prison in 2000, for 8 years. In September 2005, during my time (2 1/2 years) at U.S Penitentiary-1, Coleman, Florida (a maximum security prison), I prepared a Petition for Compassionate Release for the man who was then believed to be the longest-serving inmate in the entire Federal prison system (then 108 prisons!). He had been convicted of Kidnapping Resulting in Death in June 1964, when I was 2 years old. By the time I met him, he was a frail old, chain-smoking man (he died before the BOP did away with tobacco products in 2006) in a wheel chair. He was terminally ill with cancer, which had spread throughout his body. Because he was illiterate, the Warden told him to get someone to help him prepare a Petition for Compassionate Release, so that he might die on the street with his people, instead of in prison. His friends referred him to me, as I was arguably the most highly educated inmate (and only "real" lawyer) in the prison. One reason that Wardens don't like having inmates die in prison is that they have to call the local Coroner (who is a State, not a Federal employee) to come investigate deaths inside the prison itself. When near death, some inmates are moved to outside hospitals, so that they will die in a place where no Coroner's investigation is necessary. If the inmate dies in prison, the BOP must also bear the cost of either cremation or transporting the body to his family for burial. Also, inmates in Penitentiaries (where 2/3 have life sentences) get upset at seeing the dead bodies of their fellow inmates being removed upon death. The problem with the current BOP Compassionate Release policy is that it takes far too long (more than 6 months!) to get a decision, after the prison doctor has diagnosed the inmate as terminal. The inmates die in prison before their Petitions can move thru the bureaucratic decision-making process. Such Petitions must be approved by the Warden, the Regional Director, the Director of the BOP in Washington, D.C. (and his senior medical staff)and by a Federal Judge. Unless the process is streamlined and shortened, all terminally ill inmates will continue to die in prison or in hospitals near their prisons, not with their families. In the case I worked on, one morning in September 2005 the inmate was discovered dead in his cell after breakfast but before work call. I watched his cellmate (who discovered him dead) sit outside and cry for half an hour. The prison's inmates were locked on their living units and work call was delayed for 2 hours while the Coroner came to investigate and take his body away. The body was removed thru back hallways, so that the other inmates would observe it being removed. Inmates regularly die at Federal Medical Centers (FMCs, medical prisons, such as exist at Butner, N.C., Dallas, Tx., Rochester, Minn. and Lexington, Ky.), which actually have hospice units for the terminally ill. Palliative (non-medical) care is provided by other inmates. The FMCs are always locked down when the bodies are removed. The current Compassionate Release system is cruel to both the inmates and their families and should be revised.

Posted by: Jim Gormley | May 25, 2012 2:14:56 PM


Death sucks. So?

Our decisions have consequences. One of the consequences of deciding to kill someone is the real chance that you will not die with your family at your bedside (probably the same fate the victim of the person in your example experienced).

The murderer sealed his own fate and it has nothing to do with a cruel system.

Posted by: TarlsQtr | May 25, 2012 2:51:49 PM

It's depressing that people like TarlsQtr exist -- people who would respond as he did to Mr. Gromley's words.

Posted by: Calif. Capital Defense Counsel | May 25, 2012 3:38:55 PM

"It's depressing that people like TarlsQtr exist."

Hey TarlsQtr, I guess that means you're supposed to commit suicide -- but when you do, please use "compassion."

This wonderful blog has more than its share of amusement value.

Posted by: Bill Otis | May 25, 2012 4:00:53 PM

'The current Compassionate Release system is cruel to both the inmates and their families and should be revised.'

Not for anything it was cruel that your clients victim had to die. If some is sentenced to life in prison, then that means he should die in prison. Becoming old and sick changes nothing.

Posted by: jim | May 25, 2012 5:08:51 PM

How about the people Bill Otis sent to prison for life for non-violent, victimless, drug crimes? Should they be left to die in prison?

Posted by: Calif. Capital Defense Counsel | May 25, 2012 5:42:04 PM

Mr. Gormley, y are not the only commenter with personal experience in this area. If your "client" was convicted of an offense that occurred in 1964, he was sentenced under pre-Guidelines law. Therefore, after serving, what, 41 years(?) he was either ALREADY eligible for parole (and denied by the US Parole Commission), or he had a non-parolable natural life sentence. In either event, the decision to release was NOT in the hands of the BOP, or the Courts. Either USPC d the discretion to grant parole and denied it, or he was sentenced to die in prison. Precisely what sort of relief were you/he seeking?

And incidentally, for those who complain of the taxpayers footing the bill for terminally ill [pateients in prison, precisely who do you think is going to pay for hospital care if the dying inmate is released? It simply comes out of a different taxpayer pocket (Medicare, Medicaid, etc.)

Posted by: anon | May 25, 2012 6:12:41 PM


"How about the people Bill Otis sent to prison..."

They might have taken the trouble to obey the law, not that that ever counts with you. BTW, I didn't send anyone to prison. Only judges do sentencing. Maybe you should have learned that by now.

Posted by: Bill Otis | May 25, 2012 7:31:53 PM

Bill Otis, it must be wonderful to be white, highly intelligent, come from a stable family, get a great education with encouragement from highly motivated parents, have a great career, earn money, buy a house. Yes, in such circumstances its easy "to obey the law," particularly when the law in large part is made by people such as yourself. In its majesty the law forbids the rich as well as the poor from sleeping under bridges. If only everyone could be like you, there would be no prisoners at all.

Posted by: onlooker | May 25, 2012 8:54:48 PM

Onlooker - your comments are on the money, but Bill Otis is not highly intelligent.

No highly intelligent person could be a true believer and willing participant in the war on drugs. Bill Otis is. He is responsible for many decent, non-violent people being put in cages for decades.

Posted by: Calif. Capital Defense Counsel | May 25, 2012 9:14:48 PM

onlooker --

I can't help being amused by your Marxist-lite list of my characteristics. Have we met? I don't recall it.

In order to avoid being arrested, I actually employed a different set of criteria from the ones you set forth. The criteria are widely available no matter what your race, income, family status or vocation:

1. Don't steal stuff.
2. Don't lie to or mislead people with legitimate authority (or, preferably, anyone).
3. Get a normal job and keep at it even if occasionally annoying.
4. Stay away from drugs you know are illegal.
5. If you're in school, stay there until you graduate.
6. Get married before you have kids.
7. Be honest even if it makes you look bad. Only that builds trust.
8. Resolve your disputes without violence.
9. Pay your own bills and expect others to pay theirs.
10. Quit nursing grudges and complaining. Everybody has problems.

Would you mind telling me which of those standards is available only to rich, white Stanford graduates?

If you want me to admit that these are largely the standards of the repressed, Puritaniical, boring, un-hip Fifties, not a problem. That's exactly what they are. And if you want to tell me how much the country has improved by adopting the do-your-own-thing, follow-your-own-rules, drugs-for-everyone, crime-is-only-a-capitalist-construct, get-someone-else-to-pay-your-bills standards that became popular thereafter, feel free to do that too.

The huge majority of our citizens of all races and all economic circumstance avoid committing serious crime. This is because they understand, even if you don't (or refuse to) that the ten rules listed above are not that hard to live by.

Posted by: Bill Otis | May 26, 2012 9:30:28 AM

Bill: While there are many criminals who should be in prison (particularly violent ones), the length of sentences and conditions of incarceration in the U.S. (as well as the numbers of people incarcerated) are far beyond those of any other country on earth. The U.S. has 5% of the world's population, but 25% of it's jail and prison inmates. We incarcerate people at 5 times the rate of our peer First World countries. More than 20 million Americans (6% of the adult population) has a felony conviction. U.S. Senator James Webb (R.Va.) introduced a Bill (which hasn't been enacted)that would have appointed a Blue Ribbon Panel to review and revise the entire Federal criminal justice system. As Senator Webb has pointed out, the above-referenced statistics mean one of two things. Either Americans are five times more criminal than the citizens of other First World Countries, or there is something fundamentally wrong with out criminal justice and prison systems. When I was in one Federal penitentiary, I found a 22-year old black inmate from D.C. who had received a mandatory life sentence (3 or more felony drug convictions) pursuant to section 851. The total amount of drugs involved in his 3 felony possession convictions was 8 ounces of marijuana and 3 grams of heroin. It will cost the Government more than $2 million to keep him in prison for the next 50+ years. And I think there is something fundamentally wrong with a system that can and will impose those kinds of sentences on such a young man over such relatively small quantities of drugs. The Bureau of Prisons should also follow its own regulations, Federal statutes and the amendments to the Guidelines concerning Compassionate Release. As the F.A.M.M. article makes clear, they had to capitulate when a lawsuit was brought against them in Federal Court for not following their own rules.

Posted by: Jim Gormley | May 26, 2012 11:57:01 AM

Jim Gormley --

If people would follow the ten easy, ordinary rules I set forth in the post before yours, imprisonment in this country would wither to next to nothing. It's simply and demonstratively no use to keep complaining about the system, which is largely the same no matter which party is in power, when the true key to reducing incarceration lies in our own behavior's back yard.

Posted by: Bill Otis | May 26, 2012 3:32:31 PM

Bill, I agree that the fifties were peaceful wonderful years for childhood. I know I've told this story before, but here it is again. In the fifties my husband and a group of friends captured the town law enforcement officer. They took his guns and tied him to a tree. For this outrageous prank they all received a good talking to.

If a group of teen agers were to try this today their lives would be quite different.

Posted by: beth | May 26, 2012 6:36:41 PM

beth --

Your comments confirm what I've thought for some time now: That if you and I sat down for a lunch, we'd agree much more than we'd disagree.

Posted by: Bill Otis | May 26, 2012 7:41:24 PM

Onlooker stated: "it must be wonderful to be white, highly intelligent, come from a stable family, get a great education with encouragement from highly motivated parents, have a great career, earn money, buy a house."

I know many people that have almost none of those things and get by just fine without robbing liquor stores.

And guess what? It is not even rare in this great country, where a lowly Cherokee squaw can rise up to write cookbook recipes and run for the US Senate in Massachusetts.

Posted by: TarlsQtr | May 27, 2012 12:05:35 AM

CCCP stated: "It's depressing that people like TarlsQtr exist..."

I always pictured you walking in a largactil shuffle from your Thorazine cocktail. Thanks for the confirmation.

Posted by: TarlsQtr | May 27, 2012 12:15:06 AM

TarlsQtr --

This Elizabeth Warren story is one of the most revealing displays about the heart of liberalism I've ever seen. Totally priceless. It pits against each other the two principal, reigning liberal dogmas: (1) insert yourself into some grievance group, so you can grab the moral high ground and talk with condescension to everybody else; and (2) lie to your heart's content, secure in the knowledge that your membership in (1) with enable you to shout over, and brand as racist, anyone with the poor manners to have noticed, and said out loud, that you're fibbing.

Really, a true classic.

Posted by: Bill Otis | May 27, 2012 8:50:17 AM

I'm seriously happy to discover this great site the future of this discussion is getting good and more useful for me. Thanks for sharing.

Posted by: GED Testing system | May 29, 2012 6:28:52 AM

The President asked that the Federal Bureau of Prisons expand this program of Compassionate Release. Aside from entering a drug rehabilitation facility the only way to obtain an early release from a federal prison would be through this program. The Federal Bureau after the President's request has made it clear that they will not expand this program beyond their 'death rattle rule'. The President increased the budget for the federal prison system as no measures are being taken to decrease the population or growth.

Posted by: lyn | Feb 20, 2013 10:03:30 AM

I found this blog and its very interesting to me to see what people think about compassionate release. I am working on trying to get my brother approve for compassionate release. My brother was in prison for durg felons, did his 8 year, came out for about to months and then went back in because he violation parole by drinking was sentence back into prison for another 9 months. Then about a couple weeks later he was diagnosis with a Brian tumor deceied to go through with the surgery and when we got the news he wasn't going to make it. But when we got there day by day he was slowly making progress. They approve him for furlough. He was in the hospital for about two months having surgeries after surgeries. Then right when he was getting better they moved him to a FMC prison. Now he is a little slow, remembers the past but the present is still very foggy for him.
To me I just don't understand why do they take so long to approve a compassionate release. I really feel the if you are not doing a life sentence, you didn't kill anyone they should be a little easy on the process because when you have a love one who going through a brain injury they are going to need a lot of therapy and help to a go recovery.
I just don't know why they make the Federal law so taught and sometime I think is ridiculous. Like for example when my brother went in for surgery we were so worried about him, call the prison they would not inform us about his condition until about two weeks later on the day after his second surgery that didn't go so go they finally inform us to let us know his condition was very poor and wasn't going to make it.
But I think that it's not wroth to keep a person in prison when they only have a couple months to finish their time in prison who is either ill or is physically or mentally disable.

Posted by: Linda | Dec 11, 2013 3:31:52 PM

Do you know what are the step for compassionate release??? Because parole did come out to look at the place that my brother will be living at so do you know how much longer he has till they approve the compassionate release??

Posted by: Linda | Dec 11, 2013 3:37:30 PM

Bill Otis: Your list for avoiding arrest seems to identify behavior that many members of the U.S. Congress have difficulty conforming to. Hard to believe in that lily-white, highly educated, privileged bastion of truth.

1. Don't steal stuff.
2. Don't lie to or mislead people with legitimate authority (or, preferably, anyone).
3. Get a normal job and keep at it even if occasionally annoying.
4. Stay away from drugs you know are illegal.
5. If you're in school, stay there until you graduate.
6. Get married before you have kids.
7. Be honest even if it makes you look bad. Only that builds trust.
8. Resolve your disputes without violence.
9. Pay your own bills and expect others to pay theirs.
10. Quit nursing grudges and complaining. Everybody has problems.

Posted by: Judgg Naught | Feb 17, 2016 5:48:46 AM

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