Many Dying and Seriously Ill Prisoners Denied Access to the Courts
November 30, 2012
Justice sometimes requires compassion, even for people who have broken the law. But prison officials prevent judges from deciding when compassion requires a sentence reduction. This is unfair to the prisoners and costly to the country.
Jamie Fellner, senior advisor to the US Program and co-author of the report

(Washington, DC) – The Federal Bureau of Prisons blocks all but a few federal prisoners from compassionate release, Human Rights Watch and Families Against Mandatory Minimums (FAMM) said in a report released today. Congress gave federal courts authority to grant early release – commonly referred to as “compassionate release” – for “extraordinary and compelling” reasons such as imminent death or serious incapacitation. But they cannot do so absent a motion by the Bureau of Prisons, which rarely submits the prisoners’ cases to the courts, the groups found.

The 128-page joint report, “The Answer is No: Too Little Compassionate Release in US Federal Prisons,” is the first comprehensive examination of how compassionate release in the federal system works. Congress authorized compassionate release because it realized that changed circumstances could make continued imprisonment senseless and inhumane. But if the Bureau of Prisons refuses to bring prisoners’ cases to the courts, judges cannot rule on whether release is warranted. Since 1992, the Bureau of Prisons has averaged annually only two dozen motions to the courts for early release, out of a prison population that now exceeds 218,000. The Bureau of Prisons does not keep records of the number of prisoners who seek compassionate release.

“Justice sometimes requires compassion, even for people who have broken the law,” said Jamie Fellner, senior advisor to the US Program at Human Rights Watch and co-author of the report. “But prison officials prevent judges from deciding when compassion requires a sentence reduction. This is unfair to the prisoners and costly to the country.”

The report is based on scores of interviews with federal prisoners, family members, advocates, and current and former Bureau of Prisons and Justice Department officials, as well as the review of court and legislative documents.

Congress intended for the Bureau of Prisons to perform a limited screening function, said Human Rights Watch and FAMM. Bureau of Prisons officials should verify whether the circumstances described in the prisoner’s application are accurate – for example, whether a prisoner has a terminal illness – and, if so, send the case to the courts. In practice, however, officials refuse to make a motion to the courts if in their personal judgment the prisoner has not been punished long enough, might re-offend if released, or has committed too heinous a crime.  

“The Bureau of Prisons’ resistance to compassionate release in case after case we reviewed is as inexplicable as the outcomes are heartbreaking,” said Mary Price, vice president and general counsel at FAMM and co-author of the report. “It seems more intent on keeping men and women behind bars than on ensuring they get a day in court to have their sentences reviewed.”

Under existing law, prisoners have no right to challenge the Bureau of Prisons’ decisions in court, no matter how arbitrary or unfair they are. Nor can prisoners seek compassionate release directly from the courts.  

“Lawyers who fight to free their dying and disabled clients have long known the Bureau of Prisons stepped way over the line by assuming a role Congress never intended,” said Steve Sady, chief deputy federal public defender for the District of Oregon, who represented a prisoner profiled in the report. “Jailers should not be judges. The Bureau should send prisoner requests for compassionate release to the courts and let judges do their job.”

The Bureau of Prisons requires prisoners to be within 12 months of death or profoundly and irrevocably incapacitated to be eligible for compassionate release consideration. It does not make motions to the courts on non-medical grounds, even though the legislative history of compassionate release reveals Congress believed that non-medical cases could be sufficiently extraordinary and compelling to justify early release. For example, the Bureau of Prisons has not made motions on behalf of prisoners who seek early release to care for dying family members or when the only family member capable of caring for the prisoner’s children has died. 

The Bureau of Prisons should change its procedures to bring compassionate release motions to the court whenever it finds that a prisoner presents “extraordinary and compelling” reasons for release, regardless of whether bureau officials believe early release is warranted, the groups said.

In addition, Congress should enact legislation permitting prisoners to file motions seeking early release with the courts after they have exhausted their administrative remedies at the Bureau of Prisons.