by Dale Chappell

For thousands of federal prisoners who have filed for compassionate release after the U.S. Sentencing Commission (USSC) expanded eligibility criteria in 2013, the response has been a familiar and consistent refrain: “Denied.” Over the following four years, just six percent of compassionate release requests were approved out of 5,400 filed. Of the prisoners who made those requests, 266 died while awaiting an answer.

Congress created the compassionate release process in 1984, the same year it voted to abolish parole, to provide early release to federal prisoners with “extraordinary and compelling” circumstances. When it found the Bureau of Prisons (BOP) was rarely granting compassionate release – over a six-year period beginning in 2007, not one non-medical request was granted – Congress expanded the criteria to “broaden” the scope for prisoners eligible for relief.

Regardless, the BOP has refused to grant relief in most cases, though it recently granted early release to a convicted state lawmaker under questionable circumstances. [See: PLN, Mar. 2018, p.61; Dec. 2014, p.50]. One of the BOP’s oldest prisoners, Carlos Tapia-Ponce, 94, had his compassionate release request denied due to the severity of his crime, which involved cocaine trafficking. He died a month later.

In fact, since 2014 at least 81 elderly and terminally ill prisoners have died while waiting for the BOP to decide whether to grant compassionate release, the Department of Justice (DOJ) reported in a letter to Congress. It also admitted that prison officials had denied nearly two-thirds of compassionate release requests made by wardens.

Three of those requests were made on behalf of Kevin Zeich, a partially-blind prisoner stricken with cancer. Despite a terminal diagnosis by doctors, the BOP denied each request because Zeich’s life expectancy was “currently indeterminate.” His fourth request was approved in March 2016 and he died the next day.

The DOJ’s letter to Congress was in response to a request by 12 senators who wanted to know why the BOP’s compassionate release numbers were so dismal, especially if the applicants pose minimal risk to public safety.

“It makes sense to release prisoners who present very little danger to society,” said U.S. Senator Brian Schatz.

Nearly half the prisoners who died before they received a response to their compassionate release request were incarcerated on non-violent fraud or drug charges. Senator Schatz noted the BOP “has the theoretical authority to do this, but they basically do none of it.”

Federal prison officials, though, denied at least 60 percent of compassionate release requests based not on the crime but on the prisoner’s sentence. Such as convicted meth-cooker Tommy Leftwich, who died from liver cancer in 2017 while serving a 12-year term; these are the prisoners whose early release the BOP believes would “minimize the severity” of their offense.

For that reason, the USSC issued revised guidelines in 2016 stating the BOP should let a court make that determination.

During hearings conducted at the time, prison officials pushed back against the notion that compassionate release is an appropriate way to address federal prison overcrowding – even though the BOP currently operates at 36 percent over capacity.

In February 2018, Schatz joined U.S. Senators Mike Lee and Patrick Leahy to introduce legislation (S.2471) that would allow prisoners to appeal directly to a federal district court when their compassionate release request is denied. Under current law the process rests entirely in the BOP’s hands.

That process begins with a request made to a warden by or on behalf of a prisoner, based on one or more of the USSC eligibility criteria – including age, medical conditions or family circumstances. There is no form, nor even a requirement that the request be in writing. But it must include a release plan detailing where the prisoner will live and how his living expenses and medical needs will be met.

The request is then reviewed by the warden, a medical team and the probation office; the latter must inspect the proposed living situation for the released prisoner. There is no time frame designated for completion of this review, only that it be done in a “timely manner.”

Once a request receives a warden’s approval, it must then be approved by the BOP’s medical director – in cases based on medical needs – and/or its Correctional Programs Division, which reviews all other bases for the request. The BOP’s General Counsel also asks for an opinion from the Assistant U.S. Attorney in the district where the prisoner was convicted.

If approved by the General Counsel, the request goes to the BOP Director, who most often forwards it for an additional review by the Office of the Deputy Attorney General. After crossing that hurdle, if approved it returns to the General Counsel, who drafts a motion to reduce the prisoner’s sentence for the U.S. Attorney to file in the appropriate district court.

The judge may still deny the request, or place the prisoner on supervised release. If at any stage the request is denied by the BOP, there is an Administrative Remedy Process to appeal the denial within the agency, but no opportunity for a court to intervene and the BOP’s determination is final.

It was to prompt prison officials to grant more compassionate releases that the USSC again expanded the criteria defining “extraordinary and compelling” circumstances in 2016. Under Amendment 799, which went into effect November 1, 2016, the USSC changed the criteria to allow more prisoners to qualify for compassionate release – even those without terminal illnesses. The USSC said the amendment’s purpose was to “broaden certain eligibility criteria and encourage the director of the Bureau of Prisons to file a motion for compassionate release” in appropriate cases.

Perhaps another reason the BOP denies so many compassionate release-eligible prisoners is because its policy relies on the old criteria. Program Statement 5050.49, which has not been updated since March 2015, still requires BOP staff to follow the more restrictive criteria in place prior to the USSC’s 2016 amendment.

“We are disappointed but not surprised,” said Kevin Ring, president of Families Against Mandatory Minimums, a non-profit advocacy group, which pushed Congress and the USSC to broaden the compassionate release criteria.

“Early release will help ease overcrowding and save money,” Ring noted.

Medical costs for prisoners over age 55 are five times higher than for younger prisoners. The BOP’s share of these older prisoners is expected to rise from 12% of the federal prison population to 30% by 2019. The agency spent $1.3 billion on prisoner health care last year.

Most states have a similar compassionate release program in their prison systems, sometimes called medical parole. In March 2018, South Dakota’s governor signed into law a bill that creates a compassionate release process for prisoners who are terminally ill, “seriously ill and not likely to recover” or “require extensive medical care or significant chronic medical care,” and are at least 65 years old and have served at least ten consecutive years. 

Sources: www.reason.com, www.learnliberty.org, www.thehill.com, www.famm.org, www.themarshallproject.org, www.hrw.org

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