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June 5, 2022

Another example of "old law" federal prisoners not getting compassionate release equal treatment

Last year, I blogged here about an NPR story regrading so-called "old law" federal prisoners, persons who committed federal crimes before November 1987 and who are therefore not currently able to apply to a judge for compassionate release under the FIRST STEP Act.  This follow-up post also noted the realities facing the group of very old (and often very sick) people in federal prison who were convicted of crimes before Nov 1987 and cannot seek compassionate release directly from courts. 

This past week, a helpful reader sent me a judicial opinion involving one of these "old law" prisoners, US v. Joseph, No.86-CR-00322 (SD Fla. June 2, 2022) (available for download below).  This short opinion highlights the plight of one of these prisoners, whom the judge decides meets the FIRST STEP Act criteria for compassionate release, but still cannot get a court to directly order a sentence reduction as can all prisoners convicted after Nov 1987.  I recommend the eight-page Joseph opinion in full, and here are excerpts (with some cites removed):

To put it simply, Mr. Joseph, who stands convicted of crimes occurring prior to November 1, 1987, may not personally move a district court for compassionate release....  While the Court is unable to grant the relief requested, Mr. Joseph remains able to submit a request for motion under section 4205(g) from the Warden at his facility.  U.S. Dep’t of Justice, Federal Bureau of Prisons, No. 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g) (2019) (“BOP Guidelines”).  In such request, Mr. Joseph must address the extraordinary and compelling circumstances that he believes warrant consideration, as well as his proposed release plan.  As explained below, Mr. Joseph has presented extraordinary and compelling circumstances, no longer presents a danger to society, and has an exceptional release plan....

Mr. Joseph is seventy-three years old, suffers from deteriorating medical conditions (including anemia, thrombocytopenia, prediabetes, bilateral low vision), has a history of leukopenia, prostate cancer, and atrial fibrillation, and is also overweight.  Report at 5.  At the hearing held by Magistrate Judge Becerra, Dr. Kossouf provided new testimony as to Mr. Joseph’s disconcerting blood cell condition.  Specifically, he testified that Mr. Joseph suffers from a life- threatening blood cell condition that will “inevitably evolve into an aggressive form of leukemia.” Report at 13. Importantly, there is no treatment for Mr. Joseph’s condition and his most recent bloodwork demonstrated a sharp deterioration in his health. Id. (emphasis added)....

Mr. Joseph has provided significant evidence of both the extent and depth of his family support — financially and emotionally.  It is the exceptional nature of his family support that makes it extremely unlikely Mr. Joseph will reoffend.  Moreover, almost forty years have passed since Mr. Joseph committed his offenses and he would be closely supervised while residing with his son and daughter-in-law.  Further, in an almost unprecedented turn of events, Mr. Tilman, a retired sergeant, testified in support of Mr. Joseph’s compassionate release to home confinement.  The retired sergeant corroborated the testimony of Trevin Joseph, Mr. Joseph’s son, regarding the extensive support Mr. Joseph will have upon his release.  In other words, Mr. Joseph has a release plan that this Court views favorably.

Mr. Joseph is not yet eligible for parole.  Thus, he cannot seek early release through this avenue.  In that way, he is no different from a “new law” prisoner — for whom no parole may be sought.  However, unlike a “new law” prisoner, Mr. Joseph can only request compassionate release through the Warden at his facility.  If the Warden denies his request, that is the proverbial end of the road for Mr. Joseph.  The “new law” prisoner, however, has one additional option — a direct motion to this Court upon exhaustion of administrative remedies.  This disparity between “old law” and “new law” prisoners appears wholly unwarranted.

In sum, the statutory language here is clear and unequivocal.  Mr. Joseph cannot seek relief directly from this Court based on compassionate release under section 3582.  Nonetheless, the Court trusts that the Warden can initiate the proper compassionate release process for an “old law” prisoner like Mr. Joseph under section 4205.  In the meantime, the disparities highlighted in this Order certainly merit further examination by Congress, which is in the best position to determine whether it is appropriate to continue preventing inmates who committed offenses on or before October 31, 1987 from fully availing themselves of the First Step Act.  After all, one of Congress’s goals in passing the FSA was to broaden the reach of section 3582(c)(1)(A).

Download 86-CR-00322 - US v Joseph - CR Order

Prior related posts:

June 5, 2022 at 01:35 PM | Permalink


The first Petition for Release that I wrote at USP-1, Coleman, Florida circa September 2006 was for the longest serving inmate in the entire BOP. He began serving his time in June 1964, when he received a (paroleable) life sentence for kidnapping resulting in death; he had spent 42 years as an inmate. After this man had served 30 years of his sentence, he was paroled for 13 days, during which time he and his brother committed a few bank robberies. He was quickly apprehended and his parole was revoked. He also received new and consecutive sentences that virtually guaranteed that he would never be paroled again during his remaining lifetime. By the time he was in his 80s in 1986, he was frail and restricted to a wheel chair, from which he chain smoked cigarettes. The prison doctor discovered that he had lung cancer, which had spread throughout his body. He was terminally ill and did not have long to live. The Warden suggested that he get someone to draft a Petition for Compassionate Release, which he would approve and try to push up the ladder (Warden, Regional Director, Director of the BOP and BOP Medical Director), so that the inmate could be released to the streets and his former daughter-in-law, who agreed to take him in (his son was dead). The problem with the old system of trying to get the DOJ to file a Motion for the inmate is that there are too many levels of approval required, and most men die of their terminal illnesses before the BOP can get their Petition to the Director of the BOP (and the BOP Medical Director) for approval. In the case of the longest serving inmate, whose Petition I wrote, he died 3 or 4 weeks later, before his Petition was ever considered by the BOP Regional Director for the S.E. Region. One morning, his cellmate came back from breakfast and found his body half in his bunk and half on the floor, dead. There was no work call and no education call that morning, because the local coroner came to investigate the scene and remove the body thru back hallways, so that the hundreds of inmate with life sentences wouldn't be provoked by seeing his body being rolled out. In Federal penitentiaries, 2/3 of the inmates have life sentences, and 85% have 30 years to life -- so, most will die in prison. At least that was the way it was in 2006.

Posted by: Jim Gormley | Jun 5, 2022 9:01:42 PM

Should be 2006, not 1986, in the prior comment.

Posted by: Jim Gormley | Jun 5, 2022 9:03:28 PM

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