V. Administrative Remedy
A prisoner may appeal denials of his request for a motion to reduce his sentence made by the warden or the regional director through the regular administrative remedy process.[169] The administrative remedy process requires an appeal first to the warden who denied the prisoner’s request; if the warden rejects the administrative remedy, the prisoner may appeal to the regional office; if rejected at the regional office, the prisoner may appeal to the BOP Central Office. No appeals are possible to rejections by the Central Office.[170]
We do not know what proportion of prisoners file an appeal when their requests for compassionate release are denied by the warden. Our sense is that many do not. Some may be too sick to have the physical or emotional energy or even capacity to pursue an appeal. Some prisoners told us they were not aware they could appeal denials of their requests for compassionate release. Others suggested they did not bother because they thought it would be futile.
The belief that appeals are futile is borne out by the statistics. In 2011, there were 41 administrative remedies filed with wardens who had denied prisoner requests for compassionate release consideration; only one was granted. Out of the 40 prisoners whose administrative remedies were denied, 24 then appealed the wardens’ denials to the regional directors, who granted one. All of the prisoners who were denied at the regional director level then appealed to the Central Office, which granted none of them, although it returned one case to a warden for reconsideration.[171] Between January 1, 2009 and August 26, 2012, 127 administrative remedies were appealed to the Central Office; 55 were rejected on procedural grounds (such as not being filed in a timely manner), and none were granted.[172]
The BOP follows the same timetables in cases where compassionate release is being sought as in any other appeal. From the time a request is originally filed until a final decision by the Central Office can take 160 days.[173] There is no provision for expediting the appeals in compassionate release, even when the prisoner has only a few months or less to live and time is of the essence.
The BOP also insists on observance of the smallest bureaucratic requirements, even when dying prisoners submit their administrative appeals. In one recent case, for example, a prisoner with less than six months to live failed to use the correct form when he appealed the warden’s denial. The warden did not mention the improper form but denied his appeal, and the prisoner then appealed to the regional director. After a month, the regional director responded to the prisoner that he had used the wrong form to file his appeal with the warden and that he had to start the appeal process again with the warden, using the right form.[174] In another case, an appeal of a denial was rejected by the Central Office because the prisoner used two pages, and the limit is one page, one-sided.[175]
The responses to prisoners who appeal denials are often as cursory and one-dimensional as the denial of the prisoners’ original requests. The official justification for a denial can be as short and un-illuminating as “the nature of the offense.” It can also be outright incorrect, as in one case when a warden mixed up the role of the prisoner with that of his co-defendant.[176] Wardens’ adverse decisions are almost never overturned, and the ability of a prisoner, particularly one hampered by illness, to effectively challenge them is nil for all intents and purposes.
A Fair Process?
The BOP process for decision-making in compassionate release cases contains numerous levels of bureaucratic review, but scant guarantees of fairness. When the warden initially considers a prisoner’s request, there is no requirement that there be a hearing or even an informal meeting or interview during which the prisoner can respond directly to questions and concerns. As noted above, the rationale for decisions to deny requests for compassionate release are often summary “public safety” conclusions that yield little insight into the evidence supporting them and which therefore deny prisoners the information necessary for them to attempt to overturn the denial.
Lack of transparency continues at the Central Office. What the US attorneys or officials in the Office of the Deputy Attorney General tell the BOP when it consults them, and what influence this has in a particular case, is not revealed to the prisoner. If there were a hearing before a judge, prosecutors would have to lay out publicly any objections they have to early release. But as long as the BOP denies the prisoner’s request, such objections can remain private, because there is no appeal from the director’s decision and, as discussed below, no judicial review of that decision.
Mazen Ali YasinMazen Ali Yasin (pseudonym), a naturalized US citizen born in Iraq, is a 64-year-old small-time merchant who lived in Detroit with his wife and nine children before he began serving a 46-month sentence in March 2011 for violating the International Emergency Economic Powers Act.[177] Until January 2003, he traveled frequently to Iraq, earning money by bringing parcels and money to the families and friends in Iraq of Iraqi nationals in the Detroit area. He also traveled to Turkey to purchase nuts and seeds. The US government claimed that in December 2002, Yasin provided information to the Iraqi Intelligence Service about Iraqis living in the United States and about US troop activity he had witnessed while in Turkey. Yasin insists he was never a terrorist or a spy, but that he provided information to the Iraqi intelligence agents after they contacted him in late 2002 and threatened to prevent him from entering the country again if he did not provide them information. None of the information he supposedly provided to the Iraqis was alleged to have been secret or official information; his lawyer insists it was mostly false or fantasy and harmless. Yasin did not plead guilty to and was not sentenced for providing information to the Iraqis, but the government’s claims were included in his presentencing report. In 2009, Yasin pled guilty and received the lowest possible sentence under the sentencing guidelines, given the charges against him. The sentencing judge stated, “I don’t believe that the public needs to be protected from further crimes of the defendant. I don’t see that he’s likely to reoffend.” [178] Shortly after sentencing, Yasin was diagnosed with stage IV metastatic thymoma. The sentencing judge let him wait two years before entering prison so that he could receive medical care in the community. There is no evidence that he re-offended during this period. [179] In October 2011, Dr. Andre Carden, Yasin’s oncologist, estimated that Yasin had less than six months to live and that his case was medically appropriate for reduction in sentence consideration. [180] On November 30, 2011, the Reduction in Sentence Committee recommended to the warden a denial of Yasin’s request for a reduction in sentence, “due to the nature of your criminal offense and your ability to reoffend,” and the warden concurred on December 2, 2011. [181] There was no indication in the memorandum whether the Committee thought it likely that Yasin would want to re-offend or what sort of offense he could commit. [182] Yasin sought an administrative remedy, but his appeal was denied by the warden on May 3, 2012. On June 8, 2012, Yasin filed a petition for writ of habeas corpus in the US District Court, Eastern District of North Carolina, seeking a judicial determination of whether the BOP had violated his right to due process and the separation of powers because it made decisions based on matters reserved for the judiciary. During a meeting with Warden Sara Revell, Human Rights Watch asked her why she denied Yasin’s request for compassionate release. We noted that it was unlikely he could or would provide information to the Iraqi Intelligence Services again, given that neither the government of Saddam Hussein nor his intelligence services existed any more. Moreover, Yasin had relinquished his passport and was in no physical shape to travel in any event. Warden Revell told us that Yasin’s actions in providing information to the Iraqi government were so serious that he did not warrant a reduction in sentence. She said she gave more weight to what he had done than to the fact that he probably would not re-offend. [183] |
[169] Bureau of Prison procedures are at 28 C.F.R. 542, subpart B.
[170] 28 C.F.R. section 571.63 (d) states, “Because a denial by the General Counsel or Director, Bureau of Prisons, constitutes a final administrative decision, an inmate may not appeal the denial through the Administrative Remedy Procedure.”
[171] Bureau of Prisons, Reponses to Questions Submitted by Human Rights Watch, July 27, 2012. We do not know the ultimate outcome of the appeal that was returned to the warden for reconsideration.
[172] Data provided by James C. Wills, Assistant General Counsel, Bureau of Prisons, in email communications to Human Rights Watch and Families Against Mandatory Minimums, September 26, 2012 and October 10, 2012 (on file at Human Rights Watch and Families Against Mandatory Minimums).
[173] See 28 C.F.R. 542.18 (providing that a warden’s response is to be made within 20 days of receipt of the prisoner’s appeal and can be extended an additional 20 days; a Regional Director’s response should be made within 30 days and may be extended by 30 days; and the Central Office’s response should be received within 40 days and may be extended by 20 days).
[174] Email communication from Lynne Louise Reid, Attorney, to Human Rights Watch, April 30, 2012.
[175] “Rejection notice – Administrative Remedy,” from Administrative Remedy Coordinator, Central Office, Bureau of Prisons, to Brian Simpson (pseudonym), July 24, 2012.
[176]United States v. Shemami, No 07-20160, S.D. MI (2012).
[177] Human Rights Watch interview with Mazen Ali Yasin, FMC Butner, North Carolina, July 30, 2012. Our discussion of Yasin’s case and efforts to obtain medical release also draws on email correspondence with him, conversations with his attorney, legal pleadings, and BOP documents pertaining to his request (on file at Human Rights Watch). In addition, we spoke to the warden at FMC Butner and his BOP physician about his case on July 30, 2012.
[178]United States of America v. [Mazen Ali Yasin]; Sentencing Hearing, US District Court, Eastern District of Michigan, June 9, 2009, hearing transcript p. 17 (on file at Human Rights Watch).
[179] Yasin was out on bond from the time he was arraigned until he self-surrendered to FMC Butner in March 2011.
[180] Earlier efforts by Yasin to be considered for compassionate release failed because medical reviews indicated he seemed to be responding positively to chemotherapy and his condition appeared stable. Response to Request for Administrative Remedy, from Sara M. Revell, Complex Warden, FMC Butner, May3, 2012; Human Rights Watch interview with Dr. Andre Carden, FMC Butner, North Carolina, July 30, 2012.
[181] Reduction in Sentence Memorandum from Sara M. Revell, Complex Warden, to Mazen Ali Yasin (pseudonym), November 30, 2011 (on file at Human Rights Watch).
[182] One of Yasin’s lawyers, Harold Gurewitz, once ran into his former prosecutor, Barbara McQuade. According to Guerwitz, when he told McQuade, now US Attorney, that Yasin’s motion for compassionate release had been denied because of the possibility he might re-offend, McQuade said “that’s ridiculous.” Human Rights Watch telephone interview with Harold Gurewitz, June 4, 2012.
[183] Human Rights Watch interview with Sara M. Revell, Complex Warden, FMC Butner, July 30, 2012.