November 30, 2012


Compassionate release has not been a high priority for the Bureau of Prisons. Senior BOP officials have failed to pay appropriate attention to how wardens define and exercise their discretion in some instances, and in others, have nurtured a culture of “no” that influences how wardens respond to prisoner requests. Oversight by the Department of Justice has compounded the problem. Ranging from benign neglect to active resistance to program reform, DOJ oversight has muted the promise of compassion envisioned by Congress.

There are some promising signs of change. The BOP has created an internal working group to look at its compassionate release program and the Office of the Inspector General of the DOJ is conducting an audit of how the Bureau implements its compassionate release authority. The new director of the BOP, Charles Samuels, has told us of his interest in reforming the program. We are encouraged to learn that under his leadership, more people are receiving compassionate release.

To further significant reform, we offer the following recommendations to the BOP, the DOJ, and Congress. These recommendations are designed to ensure that all worthy compassionate release requests receive judicial review, to remove the unnecessary and inappropriate roadblocks the BOP has instituted to compassionate release, and to stop the “jailer” from usurping the role of the judge in deciding who should receive a sentence reduction.

To the Bureau of Prisons

The Bureau of Prisons must reform its process for responding to prisoner requests for sentence reduction consideration to ensure it exercises its responsibilities consistent with federal law and the principle of separation of powers. The BOP should ensure that it responds quickly, fairly, and compassionately to the needs of prisoners in extraordinary and compelling circumstances.

The BOP to date has believed that it has to “recommend” prisoners for compassionate release when it makes a motion to the courts. It has been unwilling to do so unless, in its judgment, the prisoner presents extraordinary and compelling circumstances and the BOP believes early release would not compromise public safety or other criminal justice considerations. But that is not what Congress intended it to do.

We urge the BOP to re-conceptualize its view of compassionate release motions. They should be a vehicle for presenting to the court prisoner requests whose grounds the BOP has verified as indeed extraordinary and compelling. That is, after establishing the validity of the grounds for a prisoner’s request—for example, that the prisoner has a terminal illness—the BOP would send the case to the court with a motion seeking the court’s review.

Specifically, the BOP should:

  • Immediately issue a memorandum to executive staff, to be memorialized as soon as possible in an official program statement and, to the extent necessary, in new regulations, that provides that:
    • The BOP will treat as extraordinary and compelling the reasons described in the USSC section 1B1.13 application notes. Where they exist, the BOP will not base a refusal to make a motion for sentence reduction or to request federal prosecutors to make it based on its views about public safety, sufficiency of punishment, community concerns, or other factors relevant to sentence reduction that have been statutorily assigned to the courts by 18 U.S.C. section 3582(c)(1)(A)(i). If deemed necessary, the government’s attorney may present objections to a sentence reduction on these or other grounds to the sentencing judge;
    • Medical staff, social workers, and case managers working for the BOP will take affirmative steps to raise the option of seeking compassionate release to the attention of all prisoners they believe may have extraordinary and compelling reasons for early release;
    • Denials of prisoner requests for consideration of sentence reduction by wardens, regional directors, or BOP Central Office staff should be written with specificity and should accurately state the grounds for denial and how different factors were weighed;
    • All requests for compassionate release should be processed as quickly as possible. Warden decisions should be made within 15 working days of the request from the prisoner or someone on the prisoner’s behalf, and a final decision by the BOP director should be made no later than 20 working days after a positive recommendation by the warden; and
    • In the case of appeals of denials of compassionate release, the prisoner will be deemed to have exhausted his administrative remedies 30 working days after the warden’s denial or the date of a final decision by the BOP Central Office, whichever is sooner.
  • Direct facilities to ensure that prisoner handbooks inform prisoners of the availability of compassionate release, provide a non-exhaustive list of examples of the medical and non-medical circumstances that might constitute extraordinary and compelling circumstances, and advise prisoners on how to initiate requests for consideration for compassionate release. The BOP should also ensure the handbooks clearly explain how to administratively appeal a denial.
  • Provide trained staff to assist prisoners who are illiterate or too ill or infirm to seek compassionate release or to appeal adverse decisions on their own. This assistance should include help with fashioning appropriate release plans.
  • In the event that the US Probation Office has not finalized or approved release plans, but there are extraordinary and compelling reasons for the prisoner’s sentence reduction, the BOP should proceed with a motion to the court, recognizing that the court may not order the release of a prisoner until the release plan has been finalized.
  • Establish a process to gather and annually publish statistics sufficient to ensure transparency with regard to how the BOP handles compassionate release. The statistics should include annual data regarding:
    • The number of requests for compassionate release that are made to wardens, as well as the number considered by more senior BOP staff;
    • The category of the “extraordinary and compelling” reasons alleged by prisoners to support their requests for early release (such as terminal illness or family circumstances);
    • The grounds for grants and denials by wardens and Central Office staff;
    • The number of motions for compassionate release made to sentencing courts;
    • The number of prisoners released pursuant to 18 U.S.C. section 3582(c)(1)(A)(i); and
    • The number of administrative appeals of compassionate release requests originally denied by a warden, and the number of those appeals that are granted or denied by the different administrative offices that receive the appeal.

To the Department of Justice

The Department of Justice should support congressional initiatives to legislate the recommendations noted below.

In addition, the DOJ should immediately:

  • Work with the BOP to draft new compassionate release regulations that:
    • Establish criteria for motions for sentence reduction consistent with the guidance of the USSC;
    • Limit BOP compassionate release discretion to determining whether the circumstances consistent with that guidance exist; and
    • Affirm that the BOP is not to deny a request for a motion for sentence reduction on public safety or other criteria that Congress has assigned to the courts for consideration.
  • Establish as formal DOJ policy that, until such time as Congress has enacted the legislation recommended below, no DOJ official may object to bringing compassionate release motions on grounds of public safety, sufficiency of punishment, or other considerations that belong within the courts’ purview.

To Congress

While the Bureau of Prisons can and should change its practices immediately, we also urge Congress to enact legislation to ensure judges can order the early release of prisoners for extraordinary and compelling reasons.

Specifically, Congress should:

  • Enact legislation that explicitly grants prisoners the right to seek compassionate release from the court after exhausting their administrative remedies. This will enable courts to have final say over whether a sentence reduction is warranted, while providing courts with a developed record and the BOP with an incentive to state on the record its detailed reasons for denial.
  • Enact legislation that requires the BOP to publish annual statistics regarding requests for compassionate release. The statistics should address, specifically, the number of requests made and their basis, as well as their disposition by different levels of the BOP and in the courts. They should also include data on the resolutions of administrative appeals of warden and regional director denials of prisoner requests. The data should be sufficient in quantity and specificity to ensure transparency and to enable the public and Congress to understand how compassionate release functions in practice.
  • Amend 18 U.S.C. section 3582(c)(1)(A)(i) to clarify that:
    • The BOP is required to make motions to the sentencing courts for a reduction in sentence in all cases that fall within the United States Sentencing Commission Guideline section 1B1.13; and
    • While Congress has directed the sentencing courts to consider certain public safety or criminal justice grounds in assessing motions for compassionate release, the BOP is not authorized to assess those grounds and may not rely upon them as a basis for refusing to make a compassionate release motion.

Victoria Blain

In late 2007, Victoria Blain (pseudonym) moved with her husband Jack and their two young children Tina (22 months) and Peter (6 months) to a small Arizona town.[9] In 2008, she was arrested and sent back to Alabama to face old drug charges. Blain readily admitted her role in a drug-related conspiracy and agreed to assist authorities. She was permitted to return to her home in Arizona to await sentencing and then permitted to self-surrender two months after she was sentenced. Because of her cooperation with the authorities, instead of receiving a 120-month sentence, she received a reduced sentence of 75 months.

Jack Blain took on the job of single parenthood after his wife reported to the federal prison camp near Phoenix, and for two years, with transportation help from the church community which they had joined, Victoria Blain saw her children on a weekly basis.

After serving a quarter of her sentence, she learned in January 2011 that Jack Blain had been diagnosed with an inoperable form of pancreatic cancer, and she requested compassionate release. The warden denied both her request and her subsequent administrative appeal “based on the totality of circumstances involved in this matter, including your current offense….”[10] The Regional Office concurred. “While [your husband’s] prognosis is unfortunate, we do not find extraordinary or compelling reasons to support a reduction in your sentence.”[11] Blain appealed to the BOP Central Office, pointing out that her children would be left without a family member to care for them—a circumstance the Sentencing Commission had contemplated as possible grounds for compassionate release—and asserting that she posed no danger to the community, as evidenced by the fact that the judge had allowed her to remain in her home after arrest, conviction, and sentencing.

Jack Blain, who had struggled to care for their children while falling deeper into pain and disability, died on August 12, 2011, with no response from the Central Office of the BOP. The church hastily arranged a temporary home for the children with a family and redoubled their efforts to secure Victoria Blain’s release.

The BOP eventually responded to her appeal with a request for information about the circumstances that led to the loss of her parental rights to her first child years earlier, when she was 18. Blain recounted a harrowing story of physical and psychological abuse at the hands of the child’s father, who stalked her and terrorized her family after Child Protective Services (CPS) denied him access to his son. She lost custody of and parental rights over her son when, driven by fear, she eventually allowed his father to have contact with him without CPS’s knowledge.  

In the same letter explaining how she lost custody of her eldest child, Blain begged the BOP to allow her to parent the two young children, now housed with strangers who had begun to isolate them from her and from the church community that had worked so hard to help the family. Several weeks later, she reiterated her concerns about the guardian’s increasing isolation of the children from her and the church community.

On March 1, eight months after the death of Blain’s husband and six months since she had heard anything from the BOP about her request, she was asked again to explain why she lost her parental rights to her first child, and she did so. Finally on April 3, 2012, the Central Office denied Blain’s request, citing the fact that her children were “doing well” and noting that she had accomplished a great deal while incarcerated, attending college, parenting, and drug abuse classes. The denial stated, however, that “Ms. [Blain] engaged in her criminal behavior while her children were very young. Ms. [Blain’s] parental rights were terminated for a son born during a previous relationship. Review of Ms. [Blain’s] past history raises concern as to whether she will be able to sustain the stresses of sole parenting and employment while remaining crime-free.”[12]

[9] This account was drawn from memorialized conversations with Blain’s pastor, correspondence from him and Blain, and BOP and court documents on file at Families Against Mandatory Minimums.

[10] Memorandum from D. Smith, Warden, to Victoria Blain (pseudonym), March 3, 2011

[11] Memorandum from Robert E. McFadden, Regional Director, Bureau of Prisons, May 5, 2011.

[12] Memorandum from Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of Prisons, to D. Smith, Warden, April 3, 2012.