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February 18, 2019

Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?

In this post on Friday, I mentioned that I consider the statutory changes to the so-called compassionate release provisions in federal law to the "sleeper provisions" of the FIRST STEP Act.  This four-page FAMM document, titled "Compassionate Release and the First Step Act: Then and Now," reviews some basics of the changes made by the FIRST STEP Act, and on page 3 one finds this account of what I think is a very big deal:  "The most significant change to compassionate release is that the Act provides prisoners the power to file a motion for compassionate release if they can demonstrate they have tried and failed to convince the BOP to do so for them.  Before passage of the First Step Act a denial by the BOP was not appealable."  In other words, courts rather than the BOP are now ultimately to decide who may merit a reduced "term of imprisonment" under 18 USC 3582(c)(1)(A)(i).

To focus on the statutory language, prior to the FIRST STEP Act, a federal judge under 3582(c)(1)(A)(i) needed to first receive a "motion of the Director of the Bureau of Prisons" in order to have authority to "reduce the term of imprisonment [based on] extraordinary and compelling reasons [that] warrant such a reduction."  The BOP was notoriously stingy about filing such motions (with only about .01% of inmates benefiting), and the program was, in the words of the Justice Department's Inspector General, "poorly managed and implemented inconsistently."  Now persons in federal prisons still need to request the support of BOP for such a motion, but courts can now consider a sentence reduction "upon motion of the defendant" based on a claim that "extraordinary and compelling reasons warrant such a reduction" if BOP refuses move the court or 30 days after making the request.  Importantly, the US Sentencing Commission has set forth a (reasonably expansive) policy statement concerning criteria for compassionate release via USSG 1B1.13, but it will now be fundamentally the province of the federal courts to develop jurisprudence on what should be deemed "extraordinary and compelling reasons" warranting a sentence reduction under 18 USC 3582(c)(1)(A)(i).

I plan to do a series of posts explaining why I think a number of different criteria ought to meet the (textually vague) requirements of "extraordinary and compelling reasons."  For this first post in this series, I will focus on suggestions by the Justice Department's Inspector General when he testified on this issue back in 2016 before the US Sentencing Commission.  Specifically, in testimony to the USSC, IG Michael Horowitz suggested that BOP make inmates eligible for consideration for compassionate release starting at age 50.  According to the latest BOP data, there are currently nearly 35,000 persons in federal prison aged 51 or older.  Of course, the IG did not call for early release of all post-50 prisoners, but he did urge:  "Within that larger pool of eligible aging inmates, we believe the BOP could further identify more aging inmates whose offenses, criminal histories, conduct in prison, and release plans make them suitable candidates for compassionate release, resulting in reduced overcrowding and cost savings to the Justice Department and the BOP."  As explained above, it would seem that it is now appropriate for the courts, and not just BOP, to take an active and ongoing role in deciding who among the 35,000 are "suitable candidates for compassionate release."

Importantly, ill prisoners as well as elderly prisoners should be ready candidates for compassionate release (and these two groups surely overlap).  The latest BOP data here on medical placement shows that more than 5000 federal prisoners are in "care level" 3 or 4 facilities, and "Care Level 4 facilities are reserved for inmates who require daily nursing care or therapy."  As the IG explained to the USSC in his testimony three years ago, beyond the humanitarian value of allowing ill persons to receive treatment outside of prison facilities, releasing ill prisoners helps "reduce overcrowding in the federal prison system" and can "result in cost savings for the BOP" and in turn the federal taxpayer.

Even if we imagine only 10 percent of elderly and ill federal inmates are "suitable candidates for compassionate release," we still could be looking at a means for releasing many thousands of federal prisoners in relatively short order.  I fear, because these provisions are unfamiliar, that courts may not start making robust use of compassionate release right away.  But I hope they will, and I especially hope that federal prisoners and their advocates will press this important new frontier for federal sentencing improvements. 

A few prior related posts:

February 18, 2019 at 01:04 PM | Permalink


When I was an inmate at USP-1, Coleman Florida circa 2006, I drafted a Petition for Compassionate Release for the longest serving inmate in the entire Bureau of Prisons. He began serving his (paroleable) life sentence for kidnapping resulting in death in June 1964. During 13 days of parole circa 1994, the defendant and his brother committed a series of bank robberies, he was caught and were caught and prosecuted for those crimes, as well as for the parole violation. By 2006, the inmate was in his 80s, frail and restricted to a wheel chair, where he chain-smoked cigarettes (he died before the BOP eliminated tobacco products from the Commissary). He had been diagnosed with cancer, which had metasticized throughout his body - he was terminally ill, with a short time left to live. The Warden told him to get someone to write him a Petition for Compassionate Release, and said that he would approve it and try to get the man "home" so that he could die among his family on the street. His dead brother's widow agreed to take him in and let him live at her house in Tennessee. He met me at the prison law library after dinner and I pulled the appropriate volume of the Code of Federal regulations off the shelf and reviewed it to determine what information I needed to put in his Petition. I asked him the questions and he provided me with the appropriate information. The Warden approved the Compassionate release, but he died a month later, while his Petition languished at the office of the BOP Regional Director. There was no work call or education call that morning, and all inmates were locked on their living units, while the County Coroner came and removed the body through back hallways. Because 2/3 of the inmates at a Federal Penitentiary have life sentences, the BOP does not like to permit them to see the dead bodies of inmates who die inside the prison. Wardens try to ship very sick or severely injured inmates to hospitals, so they will die there instead of inside the prison, where the County Coroner can conduct an investigation and inquest (if the inmates dies inside the prison). The elderly inmate's cellmate had returned from breakfast about 6:40 a.m., to find him dead, with his body half in his bunk and the other half hanging off the bed and on the floor. The cellmate was permitted to leave their Unit to go cry and grieve at a table outside. I watched him cry for a while through the window in my cell next door. The old Compassionate Release process takes too long (approval by the Warden, Regional Director, Staff of the Director in D.C. and the Director's Medical Adviser), about six months and most terminally ill inmates are dead before their Petition can make it through all of the required reviews. The old program was a sick joke. Hopefully the new and improved procedures will work better and be applied with real compassion.

Posted by: Jim Gormley | Feb 18, 2019 2:18:06 PM

Could I have the legal cite for the April Johnson case that seems to have expanded the scope to include caring for an adult (child) with minor children of their own?

Posted by: Wayne Boatwrgith | May 15, 2019 1:03:51 AM

I do white collar criminal defense as part of my practice. I find your blogs and your links extremely helpful, particularly since my practice includes non-criminal work so that I need a quick site to catch up on the latest in sentencing considerations.

Posted by: Abe Singer | Jun 5, 2019 1:51:54 PM

Does an inmate have to continue through the administrative remedy process even after the First Step Act and the warden had denied the inmate. If they are able to proceed to the court after a denial by the warden, where can I find that fact? I am a defense attorney. Thanks

Posted by: Christopher Devine | Jun 14, 2019 9:21:36 PM

Here is the new language added by FIRST STEP ot 18 USC 3582(c)(1)(A): "the court, upon motion of the Director of the Bureau of Prisons, [NEW LANGUAGE] or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier...". So yes, can go to court have a exhaustion of BOP remedies or 30 days from request.

Posted by: Doug B | Jun 15, 2019 12:16:27 PM

My son is currently incarcerated at the Cuyahoga County Jail, Which has been deemed as being inhumane. His civil rights have been violated countless times while there. He is serving 18 months for violating his probation for misdemeanor alcohol related offenses. He is an alcoholic with mental health issues such as Asperger’s syndrome, bipolar and anxiety. The sentencing court told me he would transfer him to an inpatient treatment facility if I did all the leg work. I know he said that thinking I would never get it done. But I did and within a week. Now he’s refuses to transfer him to an inpatient treatment facility even though I have a bed waiting for him in one. The court is playing games like saying the paper from the facility has “expired” we need a new one, even though they’ve had the paper for two weeks. They did that twice, until I gave them a paper with no admission date, just saying when he’s released they guarantee a bed for him. After that was filed with a new motion, a hearing was scheduled, just to have it cancelled the very next day. Another motion was filed on April 16, 2019 and we’re still waiting for a response from it. I spoke with the warden of the jail he’s currently in and he even agreed that he should not be there, they are already overcrowded and he has already served 9 months for violating his probation! He’s not violent. He’s an alcoholic that desperately needs addiction and mental health treatment- which he doesn’t get where he’s at. Please help me!
Thank you!

Posted by: Lee Ann | Jun 21, 2019 5:53:00 PM

You can read more news about compassionate release on https://compassionaterelease.com/

Posted by: roel | Oct 7, 2019 6:08:00 AM

You can read more news about compassionate release on https://compassionaterelease.com/

Posted by: roel | Oct 7, 2019 6:08:00 AM

You can read more news about compassionate release on https://compassionaterelease.com/

Posted by: roel | Oct 7, 2019 6:08:00 AM

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