VII. Human Rights and Compassionate Release

Human rights treaties to which the United States is a party contain no express requirement that compassionate release be available to prisoners. Nevertheless, human rights principles codified in those treaties—for example, that all prisoners be treated with respect for their human dignity and humanity, and that no one should be subjected to cruel, inhuman, or degrading treatment[206]—support fair and robust programs of compassionate release. Unfortunately, compassionate release within the Bureau of Prisons appears to reflect a greater concern with limiting the number of prisoners who receive a sentence reduction than with trying to secure such release when changed circumstances render continued imprisonment senseless, incompatible with human dignity, or cruel. Responsibility also lies with the Department of Justice, which has failed to ensure that the BOP’s application of its statutory authority to move for sentence reductions and its compassionate release decision-making process are consistent with human rights.

Within a human rights framework, imprisonment is an acceptable sanction for crime, assuming that it is imposed through proper legal procedures and that its duration is not disproportionately severe relative to the crime and the legitimate purposes to be furthered by punishment. While a prison term may have been proportionate at the time imposed, circumstances can arise that change the calculus against continued incarceration and in favor of some form of early release, even if under ongoing supervision.[207] To be consistent with human rights, a decision regarding whether a prisoner should remain confined despite, for example, terminal illness or serious incapacitation, should include careful consideration of whether continued imprisonment would be inhumane, degrading, or otherwise inconsistent with human dignity.[208] Key to that analysis is what, if any, legitimate purposes of punishment are furthered by continued incarceration. Decision-makers must consider, for example, whether continued incarceration meaningfully furthers the goals of retribution, incapacitation, rehabilitation, and deterrence.

We do not know, of course, whether federal courts would have granted a sentence reduction to any of the prisoners whose cases are noted in this report. But we are confident the courts would justify a decision one way or another with more careful deliberation and explanation than the summary stance taken by the BOP in its denials. Under the compassionate release statute, federal judges are obliged to review and weigh various factors in deciding whether to re-sentence a prisoner to time served because of “extraordinary and compelling” reasons. They must assess not just the changed circumstances, but also the considerations enumerated in 18 U.S.C. section 3553(a) governing the imposition of a sentence—including the nature and circumstances of the offense, the history and characteristics of the prisoner, and the extent to which early release would be consistent with the requirement that sentences reflect the seriousness of the offense, provide just punishment, and protect the public. The courts are also mindful that a sentence should be sufficient but not greater than necessary to meet those needs.

By placing the decision of whether a prisoner should be granted compassionate release in the hands of federal judges, Congress satisfied the human rights precept that deprivations of liberty in the criminal justice context be determined by competent, independent, and impartial tribunals following procedures that provide basic guarantees of fairness and due process.[209] 

Article 14 of the International Covenant on Civil and Political Rights (ICCPR) establishes the basic procedural requirements for criminal proceedings, including the requirement of a fair and public hearing by a competent, independent, and impartial tribunal established by law.[210] As international human rights expert Manfred Nowak has stated, “The primary institutional guarantee of Art. 14 is that rights and obligations in civil suits or criminal charges are not to be heard and decided by political institutions or by administrative authorities subject to directives; rather this is to be accomplished by a competent, independent and impartial tribunal established by law.”[211]

We are not aware of any international treaty bodies or mechanisms that have considered whether—and if so, how—the requirements of article 14 apply to processes by which compassionate release or other re-sentencing decisions are made.[212] Nevertheless, we think its purpose and logic are as applicable to re-sentencing as to the imposition of the original sentence, because ongoing restrictions on the right to liberty are at stake[213]

The relevant principles have been applied in a number of European cases, which suggest that “in cases where the grounds justifying the person’s deprivation of liberty are susceptible to change with the passage of time, the possibility of recourse to a body satisfying the requirements of article 5, section 4 of the Convention is required.”[214] The key consideration is whether the administrative entity making decisions that affect sentencing is impartial as well as independent from the executive and the parties to the case.[215] In a case questioning whether the English parole board satisfied these criteria, the European Court of Human Rights noted that “the functions of the Board do not bring it into contact with officials of the prisons or of the Home Office in such a way as to identify it with the administration of the prison or of the Home Office.”[216] The BOP is the agency charged with administration of prisons in the United States and is a part of the Department of Justice of the federal government, and it would not be able to demonstrate an impartial and independent profile from the executive with regard to its compassionate release decisions.

The compassionate release procedures followed by the BOP also lack important guarantees of fairness and protections against arbitrariness. The European Court of Human Rights has concluded in the context of a case involving the Parole Board in England recalling a convict to prison,

In matters of such crucial importance as the deprivation of liberty and where questions arise involving, for example, an assessment of the applicant’s character or mental state, the Court’s case-law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where [the applicant’s characteristics] are of importance in deciding on his dangerousness, Article 5 §4 requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.[217]

In contrast, under the BOP’s procedures, the prisoner seeking to have his sentence reduced may make a request, but there are no hearings or even interviews at which he can present his reasons and respond to concerns that might militate against release. Subsequent review of the warden’s decision to deny a request is perfunctory—with a decision to deny almost always upheld. The BOP has failed to provide prisoners with clear guidelines regarding the criteria it uses or the availability of appeal, and there is little transparency: the Bureau may have information from the DOJ concerning the prisoner’s case which is not shared with the prisoner. In short, the process lacks the basic guarantees of procedural and substantive fairness that should be present when a matter as important as individual liberty is at stake.

If the BOP were simply advising a sentencing court as to its views regarding compassionate release, or if prisoners could seek judicial review of its decisions, its lack of independence and inadequate procedural guarantees would be of less concern from a human rights perspective. But the Bureau’s refusal to grant a prisoner’s request that it submit a motion to the courts for the prisoner’s sentence reduction is not ordinarily reviewable by a court or any other impartial, independent body.

To satisfy human rights requirements, prisoners should have access to judicial review or review by a similarly independent, objective tribunal that applies basic due process requirements to decisions regarding the lawfulness of their ongoing detention. The lack of access to the courts deprives prisoners of a remedy against arbitrary, irrational, or even unlawful BOP decisions. To some extent, of course, this is a defect arising from the statute itself, which conditions the ability of the courts to consider compassionate release requests on a motion by the BOP. But this defect is aggravated because the Bureau has interpreted its authority so broadly as to render decisions on the “merits,” as opposed to simply performing a ministerial screening function.