November 30, 2012


James Michael Bowers

James Michael Bowers was sentenced in 1990 to 30 years in prison for conducting a continuing criminal enterprise and drug distribution.[1] His lengthy sentence also reflected his extensive and serious criminal history, including a plan, which he had later abandoned, to hire a hit man to murder suspected informants.

Eleven years later, Bowers was dying of prostate cancer that had spread to multiple organs. Tumors obstructed his urinary tract and bowels, causing Bowers acute and disabling pain. His doctors told him he had no more than six months to live. The prison warden, however, turned down Bowers’ request for compassionate release because even though he was dying, his criminal past included “behaviors [that] could be repeated even in your state of illness; thus, the safety of the public could be jeopardized by your release to the community.”[2] Bowers brought an administrative appeal to the warden, freely admitting he had done “some terrible things”:

“I offer no defense to the bad things I did during that terrible time…. I will never harm or wish harm on … anyone. I promise you Warden, that’s not my purpose, and I have no strength or inclination to even think of such things these days. I am a dying man….”[3]

The warden denied the appeal, and Bowers died behind bars at age 63 while his appeal to the Bureau of Prisons regional director was pending.

New circumstances can make the continued incarceration of a prisoner senseless and inhumane. Aggressive cancer may suddenly leave a prisoner facing death behind bars, as James Michael Bowers’ case exemplifies. Old age may so whittle a prisoner’s body and mind that he cannot dress, eat, or bathe by himself. An accident may claim the life of a prisoner’s husband, condemning their young children to foster care when there is no family to look after them.

In 1984, Congress granted federal courts the authority to reduce sentences for just such “extraordinary and compelling” circumstances, after taking into account public safety and the purposes of punishment. It assigned to the United States Sentencing Commission (USSC, Sentencing Commission) the responsibility to describe what those circumstances might be.

Congress authorized what is commonly called “compassionate release” because it recognized the importance of ensuring that justice could be tempered by mercy. A prison sentence that was just when imposed could—because of changed circumstances—become cruel as well as senseless if not altered. The US criminal justice system, even though it prizes the consistency and finality of sentences, makes room for judges to take a second look to assess the ongoing justice of a sentence.

Prisoners cannot seek a sentence reduction for extraordinary and compelling circumstances directly from the courts. By law, only the Federal Bureau of Prisons (BOP, the Bureau) has the authority to file a motion with a court that requests judicial consideration of early release. Although we do not know how many prisoners have asked the BOP to make motions on their behalf—because the BOP does not keep such records—we do know the BOP rarely does so. The federal prison system houses over 218,000 prisoners, yet in 2011, the BOP filed only 30 motions for early release, and between January 1 and November 15, 2012, it filed 37. Since 1992, the annual average number of prisoners who received compassionate release has been less than two dozen. Compassionate release is conspicuous for its absence.

The paucity of BOP motions for sentence reduction for extraordinary and compelling reasons is not happenstance. The BOP insists that it has essentially unbounded discretion with regard to compassionate release, and it has chosen to exercise that discretion to reject compassionate release in all but a few cases.

On the one hand, 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. 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.

On the other hand, 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. In doing so, the Bureau has usurped the role of the courts. Indeed, it is fair to say the jailers are acting as judges. Congress intended the sentencing judge, not the BOP, to determine whether a prisoner should receive a sentence reduction. The BOP would exercise a limited administrative function, screening prisoner requests for compassionate release to ascertain whether their circumstances might fall within those intended by the statute and later described by the Sentencing Commission. In such cases, it was intended that the BOP should make a motion for sentence reduction to the court. Congress instructed the court considering the motion to give due consideration to the nature of the crime, the likelihood of re-offending, the purposes of punishment, and other relevant factors in making its decision.

But in practice, when reviewing prisoner requests for compassionate release, the BOP makes decisions based on the very factors that Congress directed the courts to consider. 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. BOP officials often conclude a dying prisoner should not be permitted to spend his final months with his family because he is still physically capable of committing a crime if released, however unlikely the prospect that he would do so.

Compassionate release might not be so scarce if the courts were able to review BOP decisions declining to seek early release. But the Department of Justice (DOJ, the Department) has successfully persuaded most courts that they lack the authority to review the BOP’s refusal to bring a motion for sentence reduction, however arbitrary or unfair that decision may be.

When Congress placed compassionate release decisions in the hands of the courts, it honored the basic human rights and due process requirement that criminal justice decisions on the initial and ongoing deprivation of liberty should be made by independent and impartial entities. The BOP cannot accurately be described as either. It is a component of the DOJ, directed and supervised by the deputy attorney general. In recent years, the Department 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. Even at the level of individual cases, the DOJ exercises influence: when considering inmate requests, the BOP consults the prosecutor—and in some cases the deputy attorney general—before making a final decision.

The BOP’s compassionate release process also suffers from lack of basic procedures to ensure fair and reasoned decision-making. For example, there is no hearing in which the prisoner or his counsel—if he has one—can present his case for compassionate release, rebut arguments against it, or correct any factual mistakes BOP officials may have made. The BOP does not tell the prisoner what information or concerns it has relied on from DOJ officials or other stakeholders, which denies the prisoner a meaningful opportunity to respond to negative assessments or challenge newly raised arguments. While the prisoner can administratively appeal a warden’s denial, wardens almost never relent. Subsequent appeals up the chain to the Bureau headquarters (referred to as the BOP Central Office) are also doomed; in 2011, for example, the BOP Central Office did not grant any administrative appeals in compassionate release cases.

The DOJ has recently acknowledged that the ever-expanding federal prison population and the budget of almost $6.2 billion that BOP uses to keep federal prisoners locked up are unsustainable. According to the Department’s inspector general, the growing and aging federal prison population consumes an ever-larger portion of the Department’s budget, contributes to overcrowding that jeopardizes the safety of federal prisons and well-being of prisoners, and may force budget cuts to other DOJ components.[4] One of the most readily available, feasible, and sensible steps the BOP can make to reduce federal prison expenditures would be to ensure that compassionate release functions as Congress intended.

Increasing the number of dying or debilitated prisoners who are granted compassionate release would not markedly reduce the total federal prison population, but would free the BOP from the unnecessary security costs of confining prisoners who pose scant risk of harm to anyone and from their medical costs. The per capita cost of caring for a prisoner in one of the BOP’s medical centers was $40,760 in FY 2010, compared to an overall per capita cost of $25,627.[5] Releasing prisoners who are not suffering from grave medical conditions but who face other compelling circumstances—such as those whose children are destined for the foster care system or who are desperately needed at home to care for dying family members—would advance other important societal goals, such as preservation of the family.

Compassionate release also deeply implicates fundamental human rights principles. We recognize that there are members of the public—and public officials as well—who cannot accept the idea of early release for persons who have been convicted of felonies, especially those who have harmed victims and their families. But a criminal justice system that respects human rights does not only ensure accountability for those who commit crimes. It also ensures that sanctions are proportionate to the crime and further the goals of punishment. A prison sentence that constituted a just and proportionate punishment at the time it was imposed may become disproportionately severe in light of changed circumstances, such as grave illness. 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.

Many states have laws permitting early release or parole for medical or other reasons, establishing various procedures and criteria for eligibility. There has been little research on the experience in the different states, although the available information suggests that the laws are greatly underutilized. The experience of the BOP is important because it is the largest prison system in the country. Also, we suspect the Bureau’s resistance to forwarding cases to the courts reflects concerns—such as sufficiency of punishment and likelihood of re-offending—that state decision-makers share as well. We hope that our in-depth analysis of the BOP’s policies and practices will prompt similar inquiries into similar state programs.

Gene Brown

Dr. Gene Brown (pseudonym), age 63, a physician and medical researcher, was sentenced in 2010 to five years and three months in prison for mail and wire fraud connected to a fraudulent investment scheme.[6] His scheduled release date is in November 2013. He is terminally ill, with prostate cancer that has metastasized into his bones. According to Brown, he is in constant pain, suffers from a variety of other medical conditions, sleeps the greater part of each day, and spends most of his waking hours in medical care.

Brown has sought compassionate release. On August 17, 2011, a request submitted by his doctor on his behalf was denied. While recognizing that his prognosis was poor because of the metastasized cancer, the staff committee set up by the warden to review compassionate release requests (the Reduction in Sentence Committee) recommended that his request be denied because of the “severity of your crime [and] the possibility of your ability to reoffend,” and the warden concurred.[7] The memorandum from the warden to Brown detailed the devastating impact his scheme had on the people he defrauded. It noted, for example, that one victim was unable to get a critical stem cell transplant surgery for her husband because of the $175,000 she had given to Brown to invest, none of which she recovered. But the memorandum offers no discussion of whether or why Brown might be likely to re-offend. It only suggests re-offending would be possible, presumably because, in the committee’s judgment, Brown has sufficient physical and mental capacity to commit another crime should he so choose. When Human Rights Watch asked Brown if he filed an appeal to the denial of his request, he said he did not know that appeals were possible.

On November 8, 2011, the oncologists at his prison recommended Brown be reconsidered for sentence reduction. Four months later, on March 15, 2012, Brown asked for an update on the possible reconsideration. The staff response stated,

“We are aware that your prognosis is poor and you are progressively getting worse. Although the [oncology staff] supports a reconsideration of a [Reduction in Sentence], it is from a medical standpoint only. Please be advised that your denial of a [Reduction in Sentence] was based on your crime and your ability to re-offend. Therefore, the factors which prevented you from receiving a favorable response the first time still remains [sic].”[8]

Throughout our report, we present the stories of individual prisoners, most of whom were denied compassionate release by the Bureau of Prisons. These stories are of prisoners who, in our opinion, have the requisite “extraordinary and compelling” reasons to seek compassionate release as described by the United States Sentencing Commission. We do not know, of course, whether the courts would have granted early release to any of these prisoners, but we believe the BOP should have forwarded their cases on to the courts so that judges could have made that decision.

[1] This account of the Bowers case was drawn from memorialized conversations and correspondence with his family and his lawyer and from BOP documents on file at Families Against Mandatory Minimums.

[2] Memorandum from Maryellen Thoms, Warden, to James M. Bowers, September 20, 2001.

[3] Request for Administrative Remedy, from James M. Bowers, January 15, 2002.

[4] “Top Management and Performance Challenges in the Department of Justice – 2012,” Memorandum from Michael E. Horowitz, Inspector General, DOJ, to the Attorney General and the Deputy Attorney General, DOJ, November 7, 2012, (accessed November 19, 2012). The memorandum also notes that the BOP portion of the DOJ budget exceeds 25 percent.

[5] US Bureau of Prisons, “Federal Prison System Per Capita Costs, FY 2010” January 12, 2011, (accessed November 1, 2012).

[6]Human Rights Watch interview with Gene Brown (pseudonym), Federal Medical Center, Butner, North Carolina (FMC Butner), July 30, 2012. Information on Brown’s case was also obtained from BOP documents that he provided Human Rights Watch (on file at Human Rights Watch).

[7] Memorandum from Sara M. Revell, Complex Warden, FMC Butner, Re: Reduction in Sentence, August 23, 2011 (on file at Human Rights Watch).

[8] Response to Inmate Request to Staff, from Judy B. Pyant, BOP social worker and chair of the Reduction in Sentence Committee, March 21, 2012 (on file at Human Rights Watch).