BOP Criticized for Denying Most Compassionate Release Requests

The federal Bureau of Prisons (BOP) is operating under revised guidelines intended to expand the circumstances under which federal prisoners can seek a reduction in their sentences through the agency’s Compassionate Release Program, following two scathing reports that took the BOP to task for mismanaging the program and routinely denying early release requests.

In fact, a review by the U.S. Department of Justice’s Office of the Inspector General (OIG) determined that over the six-year period from 2006 through 2011, the BOP’s failure to act on such requests led to the deaths of 13% of the federal prisoners who sought compassionate release due to a terminal illness, who died in prison before their requests were decided.

Further, by refusing to petition courts on behalf of prisoners who should be considered for compassionate release, the BOP is usurping the decision-making power of judges, argued a November 2012 report co-authored by Human Rights Watch (HRW) and Families Against Mandatory Minimums (FAMM).

The revised guidelines, included in a BOP Program Statement issued on August 12, 2013, “broadens the circumstances in which the BOP will consider [compassionate release] requests,” according to a statement posted on the White House’s website.

The revisions cover “terminal and non-terminal medical circumstances; circumstances for elderly inmates; circumstances in which there has been the death or incapacitation of the family member caregiver of an inmate’s child; and circumstances in which the spouse or registered partner of an inmate has become incapacitated.” [See: PLN, May 2014, p.40].

Some prisoner advocates expressed doubt that the new guidelines will make much difference. “I don’t believe it’s going to change at all,” said attorney Marc Seitles, who represents a prisoner denied early release despite suffering from terminal cancer. “It’s still the same people making decisions.”

The revised compassionate release guidelines, which officials said were implemented as part of a “Smart on Crime” initiative by the Department of Justice (DOJ), failed to address some of the recommendations contained in the OIG report and did not respond to criticisms raised by HRW and FAMM.

The BOP’s Compassionate Release Program was established by the Sentencing Reform Act of 1984, which instituted determinate sentencing but also included so-called “safety valves” to allow for reductions in unjust or unfair sentences. Congress “intended the sentencing judge, not the BOP, to determine whether a prisoner should receive a sentence reduction,” according to the joint HRW/FAMM report.

Under U.S. Sentencing Commission guidelines amended on November 1, 2007, judges are to consider “extraordinary and compelling” circumstances that merit a prisoner’s early release, such as a terminal illness, incapacitation or the death of a prisoner’s spouse that would force his or her children into foster care.

But to take advantage of the compassionate release provisions, prisoners must submit copious amounts of paperwork which must then be reviewed and approved by a string of federal bureaucrats before the request is even submitted to a judge for consideration. According to the U.S. Government Accountability Office, the BOP submits such requests “infrequently.”

In fact, the OIG report found that of the approximately 214,000 federal offenders housed in BOP-operated or contracted facilities, an average of “only 24 prisoners are released each year through the BOP’s compassionate release program.”

“I urged more release for older, chronically ill offenders who couldn’t fight their way out of a paper sack, but the [BOP] Central Office was simply not interested,” retired federal prison warden Joe Bogan was quoted in the HRW/FAMM report, which included more than five dozen interviews with current and former BOP officials, federal prisoners and their family members, attorneys and advocates.

The review process under the Compassionate Release Program begins when a prisoner submits a request to the warden. According to the OIG’s summary of the necessary steps, “the request must include the extraordinary and compelling circumstances that the inmate believes merit consideration; a plan for where the inmate will reside if released; and how he or she will support him- or herself if released. If the basis for the inmate’s request is due to the inmate’s health, information about where the inmate will receive medical care and how it will be paid for must also be included.”

If the warden approves the request, it is forwarded to the BOP Regional Director; if approved at the regional level, the request is then submitted to the office of the BOP’s General Counsel, which solicits opinions from BOP medical and administrative officials and from the U.S. Attorney’s Office. If the review results in approval, the request moves up to the BOP Director.

If the Director approves the compassionate release request, the BOP contacts the U.S. Attorney’s Office in the jurisdiction where the prisoner was sentenced; an Assistant U.S. Attorney then petitions the federal district court. The prisoner is finally released only if and when the court rules favorably on the petition.

The request can be denied at any step during the process, and prisoners have the right to appeal only if the warden or Regional Director rejects their request. The OIG report noted that a rejection by the BOP Director “constitutes a final administrative action that the inmate cannot appeal.”

The “BOP has arrogated to itself discretion to decide whether a prisoner should receive a sentence reduction, even if the prisoner meets its stringent medical criteria,” the HRW/FAMM report stated. “In doing so, the Bureau has usurped the role of the courts. Indeed, it is fair to say the jailers are acting as judges.”

Some defense attorneys agreed. “The Bureau of Prisons should be letting judges have the opportunity to decide every time extraordinary and compelling reasons come to their attention, and [they are] not doing that,” said Steve Sady, a federal public defender who represents prisoners requesting compassionate release. “We believe that, under the statute, the sentence is for the judge to decide.”

The “BOP has sharply limited the grounds for compassionate release, refusing to seek a sentence reduction except when the prisoner is expected to die within a year or is profoundly and irremediably incapacitated,” the HRW/FAMM report continued. “It has not utilized the broader range of medical and non-medical circumstances that the Sentencing Commission has described as warranting consideration for compassionate release.”

Instead, “when reviewing prisoner requests for compassionate release, the BOP makes decisions based on the very factors that Congress directed the courts to consider,” noted the HRW/FAMM report. “For example, the BOP determines whether an otherwise deserving prisoner might re-offend, how a victim or the community might react to early release, and whether the prisoner has been punished enough.”

The report argued the BOP cannot make such independent and impartial determinations because the agency “is a component of the [Department of Justice], directed and supervised by the Deputy Attorney General.” And in spite of what the DOJ has acknowledged is an unsustainable $6.2 billion annual BOP budget and an expanding federal prison population, it continues to ignore even the most fundamental human rights principles.

“In recent years,” the HRW/FAMM report stated, “DOJ has taken policy positions averse to any but the most restrictive interpretation of compassionate release, favoring finality of sentences over sentence reductions for extraordinary and compelling reasons.”

The OIG report placed the blame squarely on the BOP: “We found that the existing BOP compassionate release program has been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.”

The OIG also confirmed the findings in the HRW/FAMM report that the BOP improperly restricts compassionate release requests to only those prisoners with terminal medical conditions. “We ... found that although the BOP’s regulations and Program Statement permit non-medical circumstances to be considered as a basis for compassionate release, the BOP routinely rejects such requests and did not approve a single non-­medical request during the 6-year period of our review.”

Even when requests are filed by prisoners who have only a short time to live, the OIG observed there were no administrative deadlines for when BOP officials must act. “Not all institutions have timeliness standards, and for those institutions that do, the time frame ranges from 5 to 65 days,” the OIG report noted.

To compound the problem, the BOP has no procedures for tracking compassionate release requests. “[T]he BOP cannot determine if requests are processed in a timely manner because the BOP does not track the time it takes to approve or deny requests,” the OIG wrote. “As a result, the BOP cannot determine if delays in the process exist, take corrective actions where delays occur, or ensure that inmates who may be eligible for the program, particularly those with terminal illnesses, are considered for release in a timely manner.”

In response to the OIG’s recommendations, BOP officials promised to correct the deficiencies cited in the report.

The HRW/FAMM report went further, recommending that the BOP “reconceptualize[] its view of compassionate release” requests so that it acts independently of the Department of Justice and fulfills the intent of the guidelines relative to such requests.

The report also recommended that, until Congress amends the Sentencing Reform Act to explicitly grant prisoners the right to petition for sentence reductions themselves, no DOJ official should “object to bringing compassionate release motions on grounds of public safety, sufficiency of punishment, or other considerations that belong within the courts’ purview.”

“Keeping a prisoner behind bars when it no longer meaningfully serves any legitimate purpose cannot be squared with human dignity and may be cruel as well as senseless,” the HRW/FAMM report concluded.

Sources: “The Federal Bureau of Prisons’ Compassionate Release Program,” U.S. Department of Justice, Office of the Inspector General, Evaluation and Inspections Division, No. I-2013-006 (April 2013); “The Answer is No: Too Little Compassionate Release in U.S. Federal Prisons,” Human Rights Watch and Families Against Mandatory Minimums (November 2012); www.hrw.org; www.propublica.org; www.whitehouse.gov

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