II. Compassionate Release in Practice

Compassionate Release Procedures

Procedures may vary somewhat among different Bureau of Prisons facilities, but the basic compassionate release procedure is as follows. The prisoner, or someone on the prisoner’s behalf, makes a request to the warden for compassionate release, asking that the BOP file a motion to reduce his sentence. The governing BOP program statement, Program Statement 5050.46, requires that the prisoner both explain the circumstances he or she believes justify compassionate release and provide proposed release plans that indicate, for example, where the prisoner would reside, where the prisoner would receive medical treatment if needed, and how the prisoner would cover the costs of such treatment.[55] The BOP does not offer or require a special form for the request; ordinarily a prisoner will simply use what is known as the “cop out” form that is commonly used to make any request to staff.

Our communication with current and former prisoners suggests that there is confusion as to the eligibility requirements for compassionate release.[56] The BOP advised us that a copy of Program Statement 5050.46 is available to prisoners via the Electronic Law Library.[57] But that program statement only describes the procedures the BOP will follow; it does not provide any explanation of what the BOP might consider “extraordinary and compelling” reasons for compassionate release. It does not say the Bureau limits motions for sentence reduction to prisoners with terminal illness or other dire medical conditions or that the BOP takes into consideration various extraneous criteria such as public safety, severity of the crime, and community opinion. To the contrary, in the section that directs prisoners to include a release plan with their request for compassionate release, it requires additional information from prisoners whose request is for medical reasons.[58] Prisoners who are directed to the Program Statement can understandably operate under an illusion that the BOP grants compassionate release in non-medical cases.

The prisoner handbooks that each facility provides prisoners with are also of no help to prisoners exploring whether they might qualify for compassionate release consideration. We reviewed handbooks from 10 different randomly selected BOP facilities, and none of them contained any reference to compassionate release.

We asked the BOP if facility staff were responsible for alerting prisoners about compassionate release when they think the prisoner might be eligible. We were told, “staff [are] not tasked with the responsibility for initiating the RIS process. They are tasked with processing the RIS request in accordance with PS 5050.46.”[59] No Bureau staff are responsible for identifying a prisoner or even assisting one who might meet compassionate release criteria—even one who is terminally ill or medically incapacitated and thus unable to do so unaided.[60]

Even getting prison officials to accept a request can be difficult. In one case, a prisoner repeatedly tried to submit a request for compassionate release to the warden when she learned her husband, the only caregiver of their two young children, was dying. She was rebuffed time and time again for a variety of reasons, including that she did not present sufficient reasons, she was lying about her husband’s condition, and she used the wrong form. All in all, it took her 12 attempts made over a month-and-a-half before she was able to get a request to the warden.[61]

Once a request is submitted, the warden reviews the request and makes a decision as to whether it warrants approval. There is no hearing or other required procedure in which the prisoner can orally make a case for release directly to the warden. Although not required by the Program Statement, most federal prison medical centers (which receive the bulk of compassionate release requests) have a multi-disciplinary staff committee appointed by the warden that reviews prisoner requests and then makes a recommendation to the warden. The committee considers the prisoner’s medical or other circumstances prompting the request for sentence reduction, the prisoner’s criminal history and institutional record, and the prisoner’s proposed release plan. It then prepares a memorandum for the warden summarizing this information and providing its recommendation. At some point in the process, the US Probation Office takes steps to make sure the release plans are satisfactory, including sometimes visiting the place to which the prisoner would be released and talking with family. The office may also consult with other stakeholders in the community, such as victims who have asked to be notified.

If the warden decides the prisoner’s request warrants approval, he or she sends a referral packet of information to the appropriate BOP regional director.[62] If the request is approved by the regional director, he or she then sends it to BOP headquarters, where it is reviewed by the Bureau’s general counsel. If the general counsel decides a request is not medically warranted, he or she will deny the request.[63] The general counsel seeks the opinion of the BOP medical director if it is a medical case or that of the assistant director of the Correctional Programs Division if it is a non-medical case.

Although not required by the Program Statement, the general counsel also notifies the office of the US deputy attorney general regarding requests for sentence reduction that do not involve terminal illness and consults with the US attorney in the district in which the prisoner was sentenced to see if there are concerns regarding a sentence reduction. From January 1, 2011 to November 15, 2012, the BOP sent 11 non-terminal cases to the office of the deputy attorney general. A motion was filed for sentence reduction in all 11 cases.[64] The general counsel’s office may also contact other stakeholders it thinks might be concerned about the possible early release of an individual prisoner.

The general counsel sends to the BOP director all requests that he or she recommends be approved. The director makes the final decision on whether to approve the request. If the director agrees to seek a reduction in sentence, the general counsel’s office drafts the motion and asks the US attorney in the district in which the prisoner was sentenced to file it. In 2011, the district courts granted every motion submitted on behalf of the BOP.

When a prisoner’s request is based on a medical condition, staff at all levels are required by regulation “to expedite” the request,[65] but the BOP has not adopted specified time limits for compassionate release decisions. If the warden denies the prisoner’s request, the prisoner may appeal through the standard BOP administrative remedy process.

Compassionate Release: The Numbers

We do not know how many prisoners seek compassionate release, because the BOP Central Office does not maintain records of requests denied by wardens. It only maintains records of requests that were granted by wardens and hence—pursuant to BOP rules—subsequently reviewed in the Central Office, or of prisoners’ appeals to the Central Office of denials of administrative remedies by the warden or regional director.

The General Accounting Office (GAO) recently concluded that the BOP exercises its authority to seek a judicial reduction of prisoner’s sentence “infrequently.”[67] Between 2000 and 2011, the BOP’s Central Office reviewed 444 requests by prisoners for compassionate release that had been approved by wardens and regional directors and approved 266, or 60 percent.[68] Over 21 years, from 1992 through November 2012, the BOP made only 492 motions for compassionate release, an annual average of about two dozen.

In 2011, the BOP made 30 motions for sentence reduction, out of 38 requests received in the Central Office, filed by 37 prisoners (one filed a second request).[69] Thirty of the requests came from prisoners who were terminally ill; the BOP director approved 25 of them.[70] Five of the requests came from prisoners with medical conditions other than terminal illness, and the director approved all five. There were two cases appealed to the Central Office in which prisoners sought compassionate release for non-medical reasons.

Both were denied.[71] As of November 15, 2012, the BOP had made 37 motions for compassionate release, all on medical grounds.[72]

Not only is the number of motions for sentence reduction extraordinarily small given the size of the BOP population, but it has not grown commensurate with the growth in the number of federal prisoners. As shown in Figure 1, in 1994, the BOP housed 95,034 prisoners and made 23 motions for sentence reduction.[73] In 2011, even though the federal prison population had more than doubled to over 218,170, it made only 30 motions.

Figure 2: FMC Butner – Requests for Reduction in Sentence, 2011

This figure was prepared by the BOP. Data is for prisoners at the federal prison complex at Butner, North Carolina.

The BOP has provided us compassionate release data from 2011 for the federal prison complex at Butner, North Carolina, which includes a large federal medical center. While the Bureau does not track prisoner requests to wardens that are not approved or appealed, the Butner data provided to us included prisoner request numbers. This data highlights the vast difference between the number of prisoners who sought compassionate release and the number whose requests the BOP director ultimately approved.[74]During 2011, 164 prisoners initiated the reduction in sentence process by making a request to the warden. As shown in Figure 2, only 66 of them were considered in meetings by the Reduction in Sentence Committee, which reviews prisoner requests and makes recommendations to the warden; the remaining prisoners were deemed ineligible for consideration because they were “not medically warranted” (meaning they did not have a sufficiently terminal or grave medical condition), had detainers from other jurisdictions (which precludes motions for sentence reduction), or had died before the committee could consider them.

Figure 3: FMC Butner – Warden Decisions on Reduction in Sentence Requests, 2011

This figure was prepared by the BOP. Data is for prisoners at the federal prison complex at Butner, North Carolina.

As shown in Figure 3, of the 66 cases that were reviewed by the Reduction in Sentence Committee and then sent to the warden, the warden denied 12 on the grounds that early release might jeopardize public safety. The warden approved 15 of the remaining 54 requests and forwarded them to the regional director. Seventeen requests were pending a decision, and 22 prisoners died while awaiting the warden’s decision. [75]

Of the 15 requests the warden sent to the regional director, all were approved. The BOP director subsequently approved 12 of the 15 forwarded by the regional office; two were denied because they were “not medically appropriate for consideration,” and one prisoner was denied because he “posed a risk to the community.”[76]

In short, out of the 147 requests made by prisoners at FMC Butner in 2011 (not including the 17 in which decisions from the warden were still pending at the close of 2011), 12 were ultimately approved by the director as suitable for a motion for sentence reduction, where the prisoner had not died before that approval. Reflecting the gravity of their conditions, 22 prisoners who requested compassionate release in 2011 died while still behind bars.