III. Federal Policies on Compassionate Release

“I urged more release for older, chronically ill offenders who couldn’t fight their way out of a paper sack, but the Central Office was simply not interested.”

– Joe Bogan, former BOP official who retired in 2000 after 17 years as a federal warden, telephone interview, July 15, 2012

It is unclear why the Bureau of Prisons adopted criteria that guarantee that only a paltry number of motions for sentence reduction will be filed each year. We believe the view that few prisoners should benefit from compassionate release is deeply rooted in the BOP’s history and institutional culture and reflects the preferences of the Department of Justice, of which the BOP is a part. BOP Assistant Director and General Counsel Kathleen Kenney told us the Bureau’s philosophy has long been that compassionate release should be used sparingly, although she could not tell us the origins of that approach.[81]

The BOP has been able to take a restrictive approach to compassionate release because Congress never specified the criteria it should use. The Department of Justice has taken the position that the BOP has unfettered bureaucratic discretion with regard to compassionate release because Congress statutorily committed the task of filing motions for compassionate release in court to the BOP and did not specify in the statute the circumstances under which the BOP should do so. According to the DOJ,

[W]hile “extraordinary and compelling reasons” are a permissible basis for the Director of the Bureau of Prisons to make a motion to reduce the term of imprisonment of an inmate, Congress has not specified what reasons or criteria the Bureau must consider in making this determination. Rather, this determination is within the discretion of the Director.[82]

In practice, the BOP decides for itself what the criteria for compassionate release should be, ignoring the Sentencing Commission’s guidelines, and it takes into consideration any factors it chooses, including those that Congress told the courts to consider. 

As a constituent component of the DOJ, under the direction and supervision of the deputy attorney general, the BOP does not adopt or pursue policies inconsistent with those of the DOJ, nor does it promulgate official regulations without going through a DOJ review and approval process.

Deputy Attorney General James Cole declined to meet with us for this report, or to assign other staff from his office to do so. Instead of answering our written questions to him about the Department’s guidance to the BOP with regard to compassionate release policy and its views concerning the role of compassionate release in the federal criminal justice system, he had the BOP send us a letter that offered little insight into the DOJ’s thinking. (Our letter to the deputy attorney general and the response from the BOP on behalf of the deputy attorney general are reproduced in the appendix). Practitioners and others knowledgeable about the Bureau’s recent practice indicate that the DOJ’s approach to compassionate release remains the same as reflected in the 2006 Elston letter.[83]

It is not surprising that the DOJ would want BOP motions for sentence reduction restricted to very few cases. As Glenn Fine, former inspector general for the DOJ told us, “a prosecutorial perspective permeates the institution.”[84] Paul McNulty, former deputy attorney general, agreed that the Department’s institutional culture is one in which a “law enforcement and prosecutorial perspective” tends to predominate.[85] As Rachel Barkow, a law professor who has studied the DOJ, recently wrote,

The dominance of law enforcement interests at the Department is a reflection of the dominance of law enforcement interests in the politics of criminal justice…. [N]ot only do [prosecutors] have an interest in longer sentences and mandatory punishments; they also have an interest in opposing corrections reforms that make the conditions of confinement more relaxed or that result in earlier release times.[86]

In addition to its influence on compassionate release policy, the DOJ can affect BOP decisions in individual cases. When the BOP is reviewing a prisoner’s request for a sentence reduction, it consults with the US attorney in the judicial district in which the prisoner was sentenced. “The Bureau considers the information provided by the United States Attorney’s Office in making a decision regarding a [reduction in sentence] request.”[87] According to BOP Assistant Director and General Counsel Kenney, in most cases the US attorney raises no objection about compassionate release cases.[88] But if there is a conflict, it must be resolved before the BOP director approves a motion. In non-terminal cases for compassionate release—for example, one in which the prisoner has a non-terminal illness or is seeking compassionate release on non-medical grounds—if the BOP director is considering approval of the recommendation, the case will be sent to the office of the deputy attorney general first, before the BOP director makes a final decision.[89] The Bureau was not willing to describe even in general terms deputy attorney general communications to the BOP in such cases.

Determinations regarding medical eligibility, such as whether a prisoner is within twelve months of dying, are made by BOP medical staff. But beyond the confines of medical determinations, there is little guidance, and thus much room for inconsistency, subjectivity, and even arbitrariness in decisions regarding whether to bring motions to the court for compassionate release.[90]

Wardens are the pivotal figures in the compassionate release process because their decisions to not recommend approval of prisoner requests are almost never overturned. Their “no” becomes the BOP’s “no.” On the other hand, senior officials may and do deny cases wardens have recommended. BOP data from 2000 through 2011 indicate that the BOP Central Office denied prisoner requests in 40 percent of the cases the wardens and regional directors recommended for approval.[91]

The BOP provides scant training to wardens on how to exercise their discretion and little oversight of their decision-making. If a warden wants to deny a prisoner’s request for compassionate release consideration because he believes the prisoner’s crime is heinous, there are no BOP instructions or guidance that tell him such beliefs should not play a role in his decision. Our interviews with former and current wardens suggest that while wardens learn from “experience” and familiarity with the BOP institutional culture what prisoner circumstances the Central Office is likely to consider worthy of sentence reduction, their approach to individual cases varies.[92] A former warden, for example, told us he approved every request from a prisoner who met the medical criteria for terminal illness or incapacitation, even if he assumed it would be rejected by his superiors.[93]

Former warden Joe Bogan told us he did not want to “waste his superiors’ time” by sending them cases he knew they would deny.[94] But sometimes the Central Office did reject cases he had recommended. He recounted the case of a young woman serving time for minor drug dealing who developed ovarian cancer. He approved her request for compassionate release and forwarded it up the chain of command. The Central Office turned it down because of the possibility she might re-offend. Bogan thought the decision was “ridiculous.” A few months later, the woman died behind bars.[95]

Medical Conditions

According to the BOP’s medical director, a terminal condition which leads to a motion for a reduction of sentence is usually the result of a particular illness, such as metastasized cancer.[100] A terminal condition may also result from severe co-morbidities, such as a combination of physical problems like congestive heart failure and liver failure, which, taken together, lead to a prognosis of very limited life expectancy.[101] In the category of profound and irremediable debilitation or incapacity, the BOP includes such conditions as Parkinson’s Disease, Amyotrophic Lateral Sclerosis (ALS), Alzheimer’s Disease, and permanent brain injury, paralysis, and ventilator dependency.[102] We learned, for example, of a case in which the BOP moved for the sentence reduction of a woman serving time for minor drug offenses who developed Lou Gehrig’s disease. The woman was able to go home to be with her seven-year-old daughter for the time remaining to her.[103]

Our research reveals that the majority of compassionate release motions brought by the BOP are for prisoners who are terminally ill.[104] Thus, for example, the BOP moved for a sentence reduction for 51-year-old Charles Costanzo, a first-time offender who was serving a 70-month sentence for embezzling from a worker’s compensation fund. In April 2012, three years into his sentence, Constanzo was diagnosed with stage IV stomach cancer that had already spread to his lymph nodes and diaphragm. His condition was clearly and imminently terminal. According to Costanzo, the prosecutor in his case originally balked at the prospect of compassionate release, but later agreed.[105] The BOP moved for a sentence reduction, which the sentencing judge granted.[106] Constanzo was released on July 24, 2012 to his mother’s home, and he died on October 11, 2012.[107]

Calculating life expectancies for terminal illness is not a precise science, but the BOP insists that the prognosis for the life expectancy of terminally ill prisoners be 12 months or less before it will make a motion for sentence reduction. Apparently, even when a condition is terminal and debilitating, if the doctor cannot state a 12-month prognosis, the Bureau will not recommend compassionate release.

The BOP does not consider old age and the frailty and declining physical and mental abilities that ordinarily accompany it as sufficient medical grounds for a motion for sentence reduction.[112] For example, Brian Simpson (pseudonym) is an 84-year-old federal prisoner who began serving a 10-year sentence in 2006 for conspiracy to defraud the United States and obstruction of justice.[113] Although doctors do not describe his medical condition as terminal, his daughter insists his medical condition has rapidly deteriorated since his incarceration. He has been hospitalized several times, including once for heart failure; has fluid buildup in his lungs that must periodically be drained; and suffers increasingly from a variety of other physical problems, including diabetes, hypertension, anemia, severe arthritis, and possible renal failure. His mobility is poor and he walks with a cane. He is not allowed to work because of his medical condition. His daughter describes him as “a sad, sick old man with many medical problems.”[114] The BOP has denied his requests for consideration for compassionate release because it does not consider his circumstances to be extraordinary and compelling.[115]

If the BOP were guided by the USSC’s guideline governing compassionate release, the number of motions for early release on medical grounds would doubtless be considerably greater. The guideline recognizes that extraordinary and compelling reasons for a sentence reduction can exist when a prisoner suffers from a terminal illness or when a prisoner’s capacity to care for himself in prison is substantially diminished because of illness.[116]There is more latitude here than under the rigid criteria the BOP uses. For example, the USSC does not mandate a 12-month prognosis of death.

Out of a population of over 218,000 prisoners, there are undoubtedly many more than the 30 cases granted in 2011 for terminal or other medical conditions who might meet the USSC criteria. Hundreds of prisoners die each year from illness, and many of those deaths are no doubt predictable, rendering the prisoners eligible for compassionate release. [117] At FMC Butner alone, over the six-month period between October 1, 2011 and March 31, 2012, 60 prisoners died whose deaths were predictable because of the nature of their illness. [118]

The BOP also has a growing population of elderly prisoners, many of whom will experience diminished physical and mental abilities while in prison.[119] At the end of 2010, there were 7,107 men and women in federal prisons who were age 61 and older, including 74 who were over 80.[120] The commentary to the USSC guideline states that “deteriorating physical or mental health because of the aging process … that substantially diminishes the ability to provide self-care” in prison may constitute extraordinary and compelling circumstances.[121]

Non-Medical Grounds for Compassionate Release

BOP Assistant Director and General Counsel Kathleen M. Kenney has acknowledged that, at least in the last twenty years, the Bureau has not made any motions for compassionate release for prisoners whose extraordinary and compelling reasons were not medical.[122]

The BOP views hardship to families as part of the price of incarceration and hence as insufficiently “extraordinary and compelling” to warrant early release. John Yardley (pseudonym) sought compassionate release in early 2008 because his young daughter was dying of brain cancer. He was serving a sentence of 66 months for conspiracy to possess and distribute methamphetamine and had an extensive criminal record. The warden rejected Yardley’s request: “I cannot find extraordinary or compelling circumstances to warrant recommending approval of your request for compassionate release. I have enormous compassion for your dying daughter. However, your situation is not unlike many other incarcerated prisoners in similar situations.”[123] Upholding the warden’s denial, the administrator for national prisoner appeals in the Central Office noted,

While extreme, your situation is not significantly different than other prisoners whose families experience profound hardship as the result of a loved one’s incarceration. Regrettably, family hardship, even extreme family hardship, is an unfortunate consequence of incarceration, and is not, therefore, extraordinary and compelling in a manner that supports the Bureau’s motioning the sentencing court to release you from the balance of your prison sentence.[124]

Foreseeability

The BOP will consider requests for compassionate release if the “extraordinary and compelling” circumstances “could not reasonably have been foreseen by the court at the time of sentencing.”[131] This language is ambiguous: does the rule require the circumstances to have been foreseeable in theory or that they were actually foreseen by the judge? According to Lorna Glassman, a BOP assistant general counsel, if a person had cancer but it was in remission at the time of sentencing, and the cancer returns during his imprisonment, the Central Office would not necessarily deny his request for sentence reduction because the return of cancer might have been foreseeable.[132] Wardens have, nonetheless, denied prisoner requests for compassionate release consideration on the ground their illness was known at the time of sentencing—even if they were not dying at that time.

For example, Daniel Young was 58 when he was sentenced in 2010 to 51 months of imprisonment after conviction for Medicare fraud. At the time, he had hepatitis C and diabetes, for which he was being treated; he was sick but not dying. Two years later, Young was dying of liver and renal failure. In January 2012, the warden told Young’s wife that Young would not be eligible for compassionate release because his “medical condition is clearly documented in his Presentence Investigation Report.”[133] Young died two months later, still incarcerated.[134]

When Evan Quinones entered prison in 2000 to serve a sentence of 96 months for heroin trafficking, he was HIV positive. Five years later, on September 15, 2005, his mother was informed by letter that he was “seriously ill,” and a month later, she was informed he was “critically ill.”[135] By November of that year, he was expected to live only a few months due to myriad medical problems, including AIDS, Hepatitis C, cirrhosis, pancreatitis and other conditions. He was denied compassionate release, however, because according to the warden, “the Court was aware of [his] medical condition at the time of sentencing.”[136] Quinones died in prison.[137]