November 30, 2012

IV. Public Safety and Compassionate Release

The general counsel of the Bureau of Prisons recently told us, “As a law enforcement agency, the Bureau’s mission to protect society includes a responsibility to provide for public safety and make decisions with public safety in mind…. [W]e consider it the Bureau’s responsibility to consider public safety when determining whether to pursue a prisoner’s release through a [motion for sentence reduction].”[138] The BOP assesses “public safety concerns” and the “totality of the circumstances” when deciding whether a motion for sentence reduction is warranted.[139] Indeed, public safety and other criminal justice concerns can trump all other factors, even for prisoners who are medically eligible, have an acceptable release plan,[140] and have no detainers from other jurisdictions pending.[141]

Surprisingly scant public attention has been paid to the BOP’s unilateral assumption of authority to assess the public safety implications of prisoners’ early release. This exercise of BOP discretion is troubling because Congress specifically directed the federal judiciary, not the Bureau, to assess the impact on public safety in making sentence reduction decisions. There is no question that the BOP must protect the public by ensuring prisoners under its jurisdiction do not escape, and that it must assess the risk of dangerous behavior when making furlough or halfway house decisions.[142] The BOP is the sole decision-maker in such situations, and the prisoners remain under its jurisdiction. But we can find no support for the proposition that the BOP should take public safety into account in considering whether to move the court to release a prisoner who presents extraordinary and compelling circumstances.

In interviews, neither BOP Director Charles E. Samuels nor Assistant Director and General Counsel Kathleen M. Kenney could explain the statutory or legal source of the Bureau’s asserted authority to refuse to make motions for sentence reduction to otherwise eligible prisoners on public safety grounds.[143] In a written response (reproduced in the appendix) to our question concerning the BOP’s authority to take public safety into account, the BOP stated without elaboration that “[c]ase law and legislative history describe the Director’s discretion to determine whether extraordinary and compelling reasons exist to warrant a reduction in sentence.”[144] The legislative history is in fact silent on whether the BOP should be assessing public safety, and the case law simply acknowledges the BOP’s general discretion in compassionate release decisions and does not address whether the BOP should base its decisions on public safety. The BOP also pointed us to the Hawk Memo, but while that document asserts public safety as a factor for the Bureau to consider, it does not explain the source of the Bureau’s authority to do so.

Tellingly, the Hawk Memo, which describes a set of public safety-related considerations for wardens to evaluate, includes not only factors that were committed by statute to the courts, but ones that the court is already aware of and thus hardly needs the BOP to evaluate and pass on. The sentencing court considering a compassionate release motion would already be well aware of, and better able to evaluate, the impact of the nature and circumstances of the offense; criminal and personal history and characteristics of the prisoner; the danger, if any, the prisoner poses to the public if released; and the length of the prisoner’s sentence and amount of time left to serve. The BOP has no special competence to evaluate such factors in lieu of the court. The only public safety information the BOP might be able to add to the picture would be about the prisoner’s conduct post-sentencing. While the memo commends the public safety considerations to the wardens’ “correctional judgment,” we are hard pressed to see how wardens’ judgment about such matters could ever supplant that of the sentencing judge.

It is significant that in the compassionate release statute, 18 U.S.C. section 3582(c)(1)(a)(i),  Congress did not direct the BOP to take into consideration public safety (or any other criminal justice factors) before making a motion for sentence reduction. This silence contrasts notably with another safety valve provision, 18 U.S.C. section 3582(c)(1)(A) (ii), which permits the court to reduce the sentence of certain elderly offenders sentenced to life for serious violent felonies “when a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community.” This “lifer” safety valve was added to section 3582 in 1994. According to a longstanding maxim of statutory interpretation, expressio unius est exclusio alterius, the expression of one thing is the exclusion of another. “Where Congress includes particular language in one section of a statute but omits it in another…, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”[145] The express direction to the BOP that it consider public safety before moving the court to reduce a life sentence for certain prisoners, and the lack of any direction to make a public safety determination when considering moving the court to reduce a sentence for compassionate release, strongly implies that Congress did not intend the BOP to rule on public safety in the latter case. This presumption is strengthened because the compassionate release provision had been in place for 10 years before the lifer safety valve was added in 1994. This likely means Congress intentionally added the BOP public safety determination precisely because Congress believed the Bureau was not expected to make such determinations with respect to compassionate release, but it was expected to do so in the lifer cases.

Calculating Public Safety

Former wardens acknowledged to us that predictions of future behavior are uncertain at best. When considering requests for compassionate release, some place heavy emphasis on the nature of the crime that led to the prisoners’ conviction: the more serious the potential new crime, the less likely support for early release. One former warden, Joe Bogan, told us that for public safety reasons, prisoners who had been convicted of violent or sex offenses usually would have to serve more of their sentence than non-violent offenders before he would respond favorably to requests for compassionate release.[146]

On the other hand, Art Beeler, who spent 22 years as a federal warden, told us that he had been more concerned about re-offending by prisoners who had engaged in white collar crimes than those who engaged in violent crimes, on the theory that physically debilitated prisoners might not be able to rob a bank but, given access to computers and telephones, white collar criminals could still engage in fraud.[147] He also pointed out there are no guarantees regarding future human behavior: deciding whether to recommend someone for release entails the difficult balance of being careful but not so risk averse that no case would ever be approved.

We have reviewed dozens of memoranda to prisoners from BOP wardens, regional directors, and the BOP Central Office denying, on public safety grounds, prisoner requests for compassionate release or appeals of the wardens’ denials. Based on that review, it appears that all too often, if a prisoner is considered to have the physical or mental ability to re-offend, the BOP will conclude that he poses a public safety risk. The physical and mental capability to commit a crime is conflated with the likelihood of doing so.

As the memoranda included in the appendix exemplify, the BOP usually does not explain which specific aspects of the prisoner’s history or circumstances lead officials to conclude that he or she remains dangerous. There is no analysis, for example, of whether the prisoner has shown remorse or understanding of the impact of his conduct on victims, a factor that is frequently relevant in sentencing, and there is no discussion of whether prisoners with similar profiles have proven likely to re-offend following early release.

For example, the BOP denied Carl Meecham’s (pseudonym) effort to obtain compassionate release on public safety grounds.[148] In 2006, Meecham was sentenced to 108 months in prison after being convicted of conspiracy to commit mail and wire fraud in connection with a fraudulent telemarketing scheme. He had no prior convictions. The judge explained that she sentenced Meecham to a sentence below the minimum range because of “the nature and circumstances of the offense and the history and characteristics of the defendant” and because at Meecham’s age (he was 65), a sentence “under the guideline range would leave him very little, if any, life to live upon release from imprisonment.”[149]

In June 2011, after serving more than half of his sentence, Meecham was diagnosed with stage IV lung cancer and given a prognosis of less than a year to live. The warden at the Federal Medical Facility at Butner, where he had been sent to receive palliative chemotherapy, denied his request for compassionate release, and the denial was upheld in the administrative appeal process. The memorandum to Meecham from the warden described how he and his partner had defrauded upwards of “1,000 U.S. citizens from 49 states of more than fourteen million dollars” by getting them to invest in a non-existent business. The warden opposed Meecham’s request for compassionate release to die at home because of the severity of his crime and “the possibility of your ability to re-offend.”[150] The warden then denied Meecham’s administrative appeal after considering “the likelihood of your re-offending and assessing potential risks to the public.”[151] In neither memorandum did the warden provide any analysis of why she thought Meecham might re-offend. She did not, for example, discuss whether he showed remorse for his crimes or understood the full impact of what he had done, or whether, on the contrary, she had reason to believe he was contemplating committing more crimes if released.

Although courts almost never grant compassionate release without a motion by the BOP (see Section VII, below), in November 2011, the federal judge who had originally sentenced Meecham granted him compassionate release after a petition from his lawyer. In notable contrast to the public safety concerns of the warden, the judge wrote,

But where the sentencing factors drove my decision in 2006 that Mr. [Meecham], who was in his sixties when he was sentenced, not die in prison, the sentencing factors operate again to support his petition for release to his family now. Specifically, the public will not be harmed; at this sentencing, Mr. [Meecham] demonstrated an understanding—for perhaps the first time—of the full impact of his actions, and it is inconceivable that he would desire to cause further harm. And the nature of his offenses, which call out for a serious sentence, should not trump the Court’s express intention that he outlive his time in custody.[152]

Even if the BOP had concerns regarding a prisoner’s potential public safety risk, it could make a motion for sentence reduction and urge the court to impose specific terms of supervision that would ameliorate the risk. The courts can and do build into their release orders specific conditions to further protect the public, in addition to more generic supervision requirements. For example, in Charles Costanzo’s case (discussed in Section IV, above), the court’s release order instructed Costanzo to have no contact with the government witnesses or the co-defendants in his case.[153]

Retribution, Sufficiency of Punishment, Nature of the Crime, Victims

The BOP takes into consideration a range of criminal justice factors besides the possibility of re-offending when making compassionate release decisions. These subjective, value-laden factors are often hidden under vague and conclusory references to public safety. Wardens consider such things as the nature of the crime, whether the prisoner has been “punished enough” in light of that crime, and what victims or the general public might think if the prisoner were released early.

In Carl Meecham’s (pseudonym) case, noted above, the warden commented at length in the memorandum denying his request on the great harm he had caused the victims of his fraudulent scheme. The harm seemed to weigh heavily in her decision. Former Warden Joe Bogan told us that retributive considerations clearly factored into his decision-making.[154] He explained that, while he received no guidance from his superiors about how to approach the question of whether someone had served long enough, it was something he learned to judge through experience. Compassionate release, in his view, should not be granted if it depreciated the seriousness of the offense. If a prisoner serving a twenty-year sentence became seriously ill after only two years, Bogan was less likely to recommend compassionate release than if the prisoner had already served a great proportion of his sentence. Indeed, he characterized the early release stance of the BOP as “compassionate [if the prisoner] has done enough time.”[155] Another former warden, Art Beeler, also struggled with the time a person had served. He told us, “I tried not to use it as a [criterion], but it was in my mind how long a person had served on his sentence.”[156]

A warden’s subjective response to a crime can also influence the outcome. Art Beeler told us that if a prisoner had committed a particularly terrible crime, he was less likely to recommend him for compassionate release.[157] Joe Bogan also acknowledged to us that there were some prisoners he would never recommend for compassionate release because of the heinousness of their crimes. He specifically cited sex offenders.[158]

Caspar McDonald

Caspar McDonald (pseudonym), 73 years old, has served ten years of a twenty-year federal sentence for sexually touching the child of a neighbor, taking pictures of her genitalia, and possession of child pornography.[159] He has no prior criminal history. Because of severe spinal stenosis, McDonald is permanently paralyzed below his upper chest and is unable to use his arms or legs. He also has hypertension, anemia, diabetes, and hypothyroidism. He cannot bathe, dress, go to the toilet, or move himself without assistance, and because of pain, he cannot sit up or be out of bed for more than brief periods of time. He will remain bedridden and require skilled nursing care for the rest of his life. To call a nurse, he blows into a special tube.

The BOP acknowledged that his medical condition was “serious” and made him “an appropriate candidate for reduction in sentence consideration.” [160] Nevertheless, in October 2011, Warden Sara Revell concurred with the recommendation of the Reduction in Sentence Committee that his request should be denied “due to the nature of your offense and the length of sentence imposed.” [161] When McDonald appealed the denial, Warden Revell denied the appeal, stating, “[a]n objective of the reduction in sentence program is each request will be carefully reviewed to protect the public from undue risk. Due to the seriousness of your instant offense, you are still considered a threat to society.” [162]

Human Rights Watch met with Warden Revell and asked her why she felt McDonald could be considered a threat to public safety were he released, given his physical condition.[163] Warden Revell acknowledged McDonald was physically incapable of re-offending. Yet she said that it was her responsibility to “put myself in the victim’s role” and to think “how the victim or her family would feel” were McDonald released home before the end of his sentence. She also said that as a warden, she has discretion to consider whether the prisoner’s release would lessen the seriousness of his offense.[164]

Fear of Bad Publicity

BOP staff members may consider the possibility of bad publicity or adverse public response when making compassionate release decisions in particular cases.[165] As a former warden framed it, “Compassion for a murderer? We knew we had a responsibility not to have a hue and cry from the public.”[166] Former Warden Joe Bogan emphasized that the BOP wanted to avoid bad press and “getting into trouble” over compassionate release decisions. He explained that the Bureau “takes pride in not causing problems” for the DOJ with its compassionate release decisions.[167]

This concern can prompt a conservative approach to requests for early release consideration: the BOP does not want to confront an uproar in the press or political blowback from making a motion for the early release of someone who then commits a horrifying crime. Consideration of public response may also color refusals to grant requests for compassionate release when the prisoners have committed particularly grave or notorious crimes, even if there is little or no chance of their re-offending.[168]

[138] Letter from Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of Prisons, to Human Rights Watch, October 22, 2012. See also Bureau of Prisons, “Legal Resource Guide to the Federal Bureau of Prisons 2008,” November 25, 2008, http://www.bop.gov/news/PDFs/legal_guide.pdf (accessed November 2, 2012) (“Being mindful of its mission to protect society, the BOP utilizes [compassionate release] sparingly. Historically, motions for Reduction in Sentence … have been filed only on behalf of prisoners suffering from terminal medical conditions, or who are severely and permanently mentally or physically debilitated. Additional facts that are carefully considered include, but are not limited to, the nature of the crime committed, the length of the prisoner’s sentence, the amount of time served, and the prisoner’s ability to continue criminal activity.”).

[139] Letter from Michael J. Elston, Senior Counsel to the Assistant Attorney General, to Ricardo H. Hinojosa, Chair, US Sentencing Commission (Elston Letter), July 14, 2006, p. 5.

[140] The BOP will not make a motion for compassionate release if the prisoner does not have a suitable place to live and access to necessary medical care and the means to pay for it. BOP officials emphasize the difficulty of finding an appropriate place for prisoners as an impediment to greater use of its compassionate release authority. Human Rights Watch interview with Charles Samuels, Director, Bureau of Prisons, Washington, DC, May 30, 2012.

[141] The BOP will not make a motion for sentence reduction for prisoners who have detainers pending—for example, warrants against a prisoner for pending charges, or as yet unserved but already imposed sentences from another jurisdiction.

[142]No doubt wardens’ experience managing prisoners in prison and in making halfway house placements or furlough decisions gives them some experience with judging the likelihood a prisoner might re-offend if released to the community. But wardens do not have, as far as we know, any special expertise to determine if a dying man would be likely to commit a crime in the few months remaining to him.

[143]  Human Rights Watch interview with Charles E. Samuels, Director, and Kathleen M. Kenney, Assistant Director and General Counsel, Bureau of Prisons, Washington, DC, May 31, 2012.

[144]Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012. BOP General Counsel Kathleen Kenney also responded to questions Human Rights Watch and Families Against Mandatory Minimums submitted to the deputy attorney general concerning the source of the BOP’s asserted authority to take public safety into consideration. In her response, she simply cites “statute, BOP regulation and BOP policy” as authority for the Bureau reduction in sentence program.

[145] Keene Corp. v. United States, 508 U.S. 200, 208 (1993); Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994).

[146] Human Rights Watch telephone interview with Joe Bogan, July 15, 2012.

[147] Human Rights Watch telephone interview with Art Beeler, July 15, 2012.

[148] This discussion of the efforts of Carl Meecham (pseudonym) to obtain compassionate release is based on review of BOP documents and material provided to Human Rights Watch by Meecham’s lawyer (on file at Human Rights Watch).

[149]  United States of America v. [Carl Meecham (pseudonym)], Judgment in a Criminal Case, United States District Court, New Jersey, June 28, 2006.

[150] Memorandum from Sara M. Revell, Complex Warden, to Carl Meecham (pseudonym), Re: Reduction in Sentence, October 6, 2011.

[151] Memorandum from Sara M. Revell, Complex Warden, to Carl Meecham (pseudonym), Re: Reduction in Sentence, December 2, 2011.

[152]United States v. [Carl Meecham (pseudonym)], No. 03-cr-120-02, NJDC (Nov. 18, 2011), “Order for Release,” p. 2.

[153] Order to Reduce Imprisonment to Time Served, United States v. Costanzo, C.R. 08-010, M.D. PA. (filed July 23, 2012).

[154] Human Rights Watch telephone interview with Joe Bogan, July 15, 2012.

[155] Ibid.

[156] Human Rights Watch telephone interview with Art Beeler, July 15, 2012.

[157] Ibid.

[158] Human Right Watch telephone interview with Joe Bogan, July 15, 2012.

[159] Human Rights Watch interview with Caspar McDonald (pseudonym), FMC Butner, North Carolina, July 30, 2012. Information on McDonald’s case is also based on BOP documents addressing his request for compassionate release (on file at Human Rights Watch).

[160] Memorandum from Sara M. Revell, Complex Warden, FMC Butner, to Caspar McDonald (pseudonym), “Reduction in Sentence,” October 4, 2011.

[161]  Ibid.

[162] Request for Administrative Remedy, Part B. –n Response, Admin Remedy Number 685439-F1, from Sara M. Revell, Complex Warden, FMC Butner, May 2, 2012.

[163] Human Rights Watch interview with Sarah Revell, Complex Warden, FMC Butner, North Carolina, July 30, 2012.

[164] Ibid.

[165] Confronting a request for compassionate release from a prisoner convicted of methamphetamine distribution who was dying of cardiomyopathy that he had developed as a result of his drug habit, the warden hesitated because he wondered how it would look to the public to give the prisoner “preferential treatment” since he had harmed himself. In the end, however, he did recommend release, it was approved, and the prisoner died at home about three months after release. Human Rights Watch telephone interview with a former warden who requested anonymity, July 17, 2012.

[166] Ibid.

[167] Human Rights Watch telephone interview with Joe Bogan, July 15, 2012.

[168] However, we note that Warden Revell told us that “she could care less” about negative political responses to her decisions. She insisted she made her decisions based on the merits of each case as she saw it. Human Rights Watch interview with Sara Revell, July 30, 2012.