VI. The Lack of Judicial Review
When the Bureau of Prisons refuses to make a motion for sentence reduction, prisoners have no recourse. The government vigorously opposes prisoners’ efforts to obtain relief in the courts, and the courts in turn have been loath to intervene. Judicial review of a BOP refusal to support compassionate release is almost non-existent.
Prisoners have appealed to the courts in several different ways. Some have directly asked the sentencing court to reduce their sentence for extraordinary and compelling reasons, notwithstanding the BOP’s refusal to bring a motion. Others have asked the federal courts to review the Bureau’s refusal as unlawful. Still others have tried to challenge the way the BOP arrived at its regulations and internal program statements.
Seeking Direct Release
With rare exceptions, prisoners who have filed compassionate release motions directly to the courts have been rebuffed. The courts have accepted the government’s argument that they lack authority to intervene because the compassionate release statute gives the BOP sole discretion to bring them the motion for a reduction in sentence for extraordinary and compelling circumstances. That is, Congress has not authorized prisoners to make such motions on their own.[184]
Review of the Failure to Act
Federal courts are sometimes able to review the actions or failures to act of federal agencies to determine if they are consistent with governing statutes and regulations. Some prisoners have sought to convince courts to review the BOP’s refusal to make a compassionate release motion, in hopes the court will find the Bureau acted unlawfully and order it to act. The courts have almost always concluded that they have no basis for overturning the BOP’s decision on the grounds that Congress granted the BOP complete discretion to bring or not bring a motion.[185] Because the Bureau has such broad discretion, the courts have no way to intervene and, even if they did, no standards against which to judge a refusal to make a motion.
As one court explained, “[t]he statute places no limits on the BOP’s authority to seek or not seek a sentence reduction on behalf of a prisoner, nor does it define – or place any limits on – ‘what extraordinary and compelling reasons’ might warrant such a reduction.”[186] The BOP’s unlimited discretion means the agency “has no duty to move for a sentence reduction under any circumstances.”[187]
Only very rarely has a court ventured a deeper examination. On one occasion, a prisoner persuaded the court to examine the BOP’s refusal to bring a motion in light of the requirement that an agency apply—rather than disregard—the relevant statutory and regulatory criteria.”[188] Kyle Dresbach, a federal prisoner, contended that the BOP was operating arbitrarily and unlawfully in violation of its own policies by not considering non-medical cases for compassionate release. Dresbach had been sentenced in 2005 to 58 months imprisonment on charges related to fraud, money laundering, and tax evasion.[189] He had no prior criminal history. At the time of sentencing, his wife had a mild cognitive dysfunction that was subsequently diagnosed as Alzheimer’s. Her condition deteriorated, and by 2010, she required a full-time caregiver. She was also no longer in a position to be able to care for a daughter who lived at home, who had cognitive impairments and a seizure disorder.
Although Dresbach had already served more than half his sentence, the BOP denied his request for consideration for compassionate release so he could take care of his wife and daughter. According to the Bureau’s national prisoner appeals administrator, “[c]learly [a] prisoner’s family experiences anxiety, pain, and hardship when a family member is incarcerated and unavailable to assist other family members. However, family hardship is an unfortunate consequence of incarceration and does not fall within the restricted application of the statute.”[190]
After exhausting his administrative remedies, Dresbach went to court arguing that the BOP had abused its discretion by adopting policies that foreclosed consideration of compassionate release for prisoners who were not terminally ill or seriously debilitated. The court brushed aside the government’s arguments that it lacked authority to hear Dresbach’s complaint and ordered the government to provide proof that the BOP did in fact consider non-medical cases for compassionate release. The government provided the court with three cases in which it had considered non-medical reasons for compassionate release, although it had denied all three. The court ordered the government to explain the apparent conflict between the Bureau’s statements that their policy permitted consideration of non-medical reasons and the language used in specific non-medical cases that seem to limit compassionate release to medical cases.[191] In June 2011, the director of the BOP conducted an unprecedented de novo review of Dresbach’s case, which also concluded with a denial. The director noted that,
[t]hese decisions are always difficult. Dresbach’s family circumstances are indeed serious, and his imprisonment is a hardship for his family…. In my experience, it is not uncommon that families in the community face similar issues.… Therefore, while I find Dresbach’s family situation most unfortunate, and I can empathize with his circumstances, I cannot conclude that his circumstances are so extraordinary and compelling as to warrant a RIS.[192]
The director thought Dresbach’s presumed eligibility for home confinement in six months—in February of 2012—militated against granting compassionate release, rather than indicating that there was little penological purpose in keeping him incarcerated for that short period. The court was satisfied that the BOP had shown it was willing to consider non-medical situations and denied Dresbach’s motion for a reduction in sentence.[193] Dresbach finished serving his sentence and was released from prison on August 8, 2012.
In another case, a court concluded that the BOP reasonably interpreted the compassionate release statute to apply only to prisoners with serious medical conditions: “Where, as here, Congress has enacted a law that does not answer the precise question at issue, all we must decide is whether the Bureau … has filled the statutory gap in a way that is reasonable in light of the legislature’s revealed design.”[194]
Courts have also been asked to look to the BOP’s regulations, which were written by the Bureau, to see if the BOP refusals violate its own rules. But those rules offer no help for prisoners. One district court neatly summed it up: “In § 571.63, the BOP does not give any requirements or procedures that the BOP must follow in determining whether to deny a request for reduction of sentence, leaving it unlimited discretion.”[195] In other words, because the BOP has given itself unlimited discretion, it is free to exercise that discretion without fear that a prisoner will be able to succeed in challenging adverse decisions in federal court.
Challenging the Rules
Still other prisoners have sought to challenge in court the BOP’s “unwritten policy” to restrict motions for sentence reduction to dire medical cases as a “rule that should have been published publicly for notice and comment under the Administrative Procedure Act (APA).”[196] The APA requires that rules that affect rights and obligations must be published for public comment before being adopted. So-called “interpretive rules,” on the other hand, need not be. The courts have ruled against prisoners in these cases, agreeing with the government that the BOP’s policy is a legitimate interpretation of the compassionate release statute not subject to APA requirements.[197]
New Challenges
Recently, some prisoners have brought cases arguing that the BOP has unconstitutionally undermined the statutory scheme Congress laid out by usurping judicial authority when it denied their requests for the Bureau to file a compassionate release motion.
Philip Wayne SmithOn November 13, 2002, Philip Wayne Smith, age 33, pleaded guilty to possession with intent to distribute of a half-ounce of methamphetamine. [198] Because of his prior record of drug offenses, he was sentenced as a career offender to 156 months of imprisonment, to be followed by three years supervised release. After serving nine years, more than half of his prison sentence and three years short of his projected release date of July 20, 2014, assuming good time, Smith was diagnosed in late 2011 with acute myelogenous leukemia (AML), a terminal illness. The BOP denied his first request for consideration for compassionate release, after reviewing his medical conditions and criminal history, concluding that “the most appropriate course of action” was for him to proceed with a bone marrow transplant when the hospital deemed it appropriate and assuming the Central Office approves the transplant. [199] By early 2012, according to Smith’s physician, he had only a few weeks to live. In response to his second request for consideration for compassionate release, the Bioethics Committee at his facility met on February 2, 2012 to again review Smith’s case. The committee concluded he was not appropriate for compassionate release, stating that “while your medical condition is very poor, your criminal history outweighs your medical condition.” [200] The warden of Federal Medical Center Lexington concurred with this denial. [201] On February 23, 2012, Smith filed a lawsuit in federal district court in Oregon, arguing that the BOP was violating the compassionate release statute and due process by failing to apply the compassionate release guidelines established by the US Sentencing Commission and that the Bureau’s refusal to refer his case to the sentencing court violated the separation of powers by usurping the judicial role in sentencing. He argued that the BOP had unlawfully frustrated the court’s well-grounded expectation at the time of sentencing that, should Smith develop extraordinary and compelling circumstances such as those laid out in the Sentencing Commission’s Policy Statement on compassionate release, the BOP would ask the court to exercise its authority to grant early release. The BOP’s refusal to do so, its “defiance of the proper Executive Branch role in executing a sentence,” violated constitutional separation of powers, in part “by usurping the judicial role in sentencing. Rather than serving as a gate-keeper, giving the Court notice when ‘extraordinary and compelling reasons’ exist, the BOP only files a motion when it thinks it should be granted.” [202] The court never ruled on these legal claims, because after two weeks of litigation primarily focused on the authority of the court to entertain Smith’s motion, the BOP reversed course. On March 12, 2012, it made a motion to reduce Smith’s term of imprisonment to time served. The court immediately signed the order, and Smith died at his brother’s home on April 9, 2012. [203] A video about compassionate release by the Oregon public defender’s office, which represented Smith, includes an interview with Smith and his family and is available online. [204] |
On rare occasions, a court has granted relief to prisoners seeking compassionate release, essentially by ignoring the legal obstacles on which other prisoners’ cases have foundered.[205] Prisoners should not have to find undaunted and creative lawyers and judges to obtain meaningful judicial review of their cases. Either the BOP should function as Congress intended—that is, as a screen, not as an intransigent gatekeeper—or Congress should grant prisoners the right to make motions directly in court to seek judicial review of the BOP’s actions.
[184] See, for example, Engle v. United States, 26 F. App’x 394, 397 (6th Cir. 2001) (district courts “lack jurisdiction to sua sponte grant compassionate release….”); United States v. Smart, 129 F.3d 539, 541 (10th Cir. 1997); and Cruz-Pagan v. Warden, 2012 U.S. App. LEXIS 16392, *2 (11th Cir. Aug. 7, 2012) (stating, “without a motion from the Director, a precedential case, an authorizing statute, or an authorizing Rule granting us subject-matter jurisdiction, we cannot modify his sentence).
[185] See Crowe v. United States, 430 F.App’x 484, 485 (6th Cir. 2011); Turner v. United States Parole Commission, 810 F. 2d 612, 615 (7th Cir. 1987); Simmons v. Christensen, 894 F.2d 1041, 1043 (9th Cir. 1990); Fernandez v. United States, 941 F.2d 1488, 1493 (11th Cir. 1991); Taylor v. Hawk-Sawyer, 39 F. App’x 615, 615 (C.A.C.D.C. 2002).
[186]Crowe v. United States, 430 Fed. App’x 484, *2-3 (6th Cir. 2011).
[187]Defeo v. Lapin, No. 08 Civ. 7513, 2009 WL 1788056,(S.D.N.Y.), June 22, 2009.
[188]United States v. Dresbach, 806 F. Supp. 2d 1039, 1042 (E.D. Mich., 2011) (citing Kurt Meister v. U.S. Dept. of Agriculture, 623 F.3d 363, 367 (6th Cir. 2010)).
[189] Information on the case of Kyle Dresbach comes from motions and briefs submitted by Dresbach and by the government in his case challenging BOP denial of his request for compassionate release consideration, as well as BOP documents included as exhibits to those briefs (on file at Human Rights Watch).
[190] Administrative Remedy Number 559947-A2, signed by Harrell Watts, Administrator, National Inmate Appeals, Bureau of Prisons, March 29, 2010 (on file at Human Rights Watch).
[191]United States v. Dresbach, 806 F. Supp. 2d 1039, 1042 (E.D. Mich., 2011).
[192] Denial letter quoted in United States v. Dresbach, p. 1042.
[193] Ibid.
[194]United States v. Maldonado, 138 F. Supp.2d 328, 333 (E.D.N.Y. 2001).
[195]United States v. [Mazen Ali Yasin (pseudonym)], No 07-20160, S.D. MI, “Opinion and Order Denying Defendant’s Motion for Reduction of Sentence,” July 2, 2012.
[196]Williams v. Van Buren, 117 Fed. Appx. 985, 986 (Fifth Cir. 2004).
[197]Williams v. Van Buren, p. 987; see also Hubbs v. Dewalt, 2006 U.S. Dist. LEXIS 27950, *10 (E.D. KY, May 8, 2006).
[198] Information on Phillip Wayne Smith’s case comes from court documents he and the government filed in court in connection with Smith’s effort to obtain a sentence reduction, United States of America v. Phillip Wayne Smith, CR. 02-30045-AA, US District Court, District of Oregon, Emergency Motion to Reduce Sentence and Provide Other Equitable Relief Pursuant to 28 U.S.C. section 2255 5, February 23, 2012.
[199] Response to Request for Reduction in Sentence Consideration, to Phillip Smith, October 28, 2011 (on file at Human Rights Watch).
[200] Response to Request for Reduction in Sentence Consideration, to Philip Smith, February 9, 2012 (on file at Human Rights Watch).
[201] Letter from Bureau of Prisons to US District Court, District of Oregon, March 1, 2012, quoted in United States of America v. Phillip Wayne Smith, C.R. No. 02-33045-AA, Supplement to Emergency Motion to Reduce Sentence and For Other Equitable Relief, filed March 5, 2012.
[202]United States of America v. Phillip Wayne Smith, CR. 02-30045-AA.
[203]United States of America v. Phillip Wayne Smith, CR. 02-30045-AA, US District Court, District of Oregon, Government’s Motion to Reduce Term of Imprisonment to Time Served, March 12, 2012.
[204] “The Broken Promise of Compassionate Release,” video, July 9, 2012, http://www.youtube.com/watch?v=-d-6qfgdW2c (accessed November 5, 2012). See also Ninth Circuit Blog, “Putting the Compassion into ‘Compassionate Release’ with a Little Help from Setser,” March 28, 2012, http://circuit9.blogspot.com/2012/03/putting-compassion-into-compassionate.html (accessed September 22, 2012).
[205]See United States v. Lagonia, 2012 U.S. Dist. LEXIS 21613 *6-7 (D. N.J., Feb. 17, 2012) (discussing and distinguishing grants in U.S. v. Sims, No. CR-486-80 (S.D. Ga., June 28, 2011), and U.S. v. Meyers, No. 03-cr- 120-02 (D.N.J., November 18, 2011)); see also U.S. v. Coster, Order and Opinion, No. 90-cr-276 (N.D. Ohio, October 26, 2006) (granting prisoner’s motion under Fed. R. Civ. P. 60(b)(6) after the government argued the prisoner had failed to exhaust his administrative remedies, but did not challenge the court’s jurisdiction. The court found that exhaustion would have been futile in light of his impending death and the lengthy administrative remedy process, and ordered his release.).