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“Everywhere and Nowhere: Compassionate Release in the States”
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The Campaign for Compassionate Release, composed of a coalition of diverse organizations, is a new public education and advocacy campaign to urge the creation, expansion, and robust use of federal and state programs that grant early release to prisoners facing extreme circumstances, such as a terminal or age-related illness. Most prisoners and their families do not know these programs exist. Others, including many prison officials, are misinformed and unclear about the process.
What is Compassionate Release?
Watch our video to learn more about compassionate release.
The Problem
Virtually all state prison systems and the federal prison system allow for the early “compassionate release” of sick, elderly, or disabled prisoners. Unfortunately, almost everywhere, these systems are rarely used.
The federal compassionate release program has existed for decades but is rarely used. The Bureau of Prisons (BOP) must decide who meets program criteria and seek their release in the courts, but only brings a trickle of release motions to the courts annually. Delays also plague the program; prisoners commonly die awaiting a decision.
The Bureau of Prisons (BOP) must decide who meets program criteria and seek their release in the courts, but only brings a trickle of release motions to the courts annually. Delays also plague the program; prisoners commonly die awaiting a decision. Congressional appropriators, government watchdogs, the U.S. Sentencing Commission, and outside advocates all have questioned the BOP’s failure to use the program as Congress intended, especially since sick, dying and elderly prisoners are the least likely to re-offend and the most expensive to house.
State compassionate release programs vary wildly, from non-existent to extremely limited.
The Solution
The Campaign for Compassionate Release supports the adoption and regular use by state and federal governments of compassionate release mechanisms that provide prisoners and their families with
- notice of the availability of compassionate release,
- clear guidance for submitting requests,
- a meaningful and timely review of and response to requests, and
- access to court review for relief when administrative avenues have been exhausted.
Impacted Family Stories
The families of prisoners who are seeking compassionate release are the most affected and unintended victims of the program. FAMM created three videos that highlight the personal stories of Warren Rossin, Allison Rice and Debbi DeMasi.
Current Legislation and Cases
The Granting Release and Compassion Effectively (GRACE) Act was introduced Sens. Brian Schatz (D-HI), Mike Lee (R-UT), and Patrick Leahy (D-VT). If passed, the GRACE Act would create greater accountability and oversight of the Bureau of Prisons’ (BOP) role in the compassionate release process. Currently, compassionate release is consistently neglected and mismanaged by the BOP. Families and prisoners often do not know that compassionate release is available, very few qualified compassionate release requests are granted, and families and prisoners often wait months to receive a decision from the BOP. Since 2014, 81 families have watched their loved one die in prison while awaiting a decision. The GRACE act will increase institutional knowledge of compassionate release among families, prisoners, and BOP staff, it will give prisoners the opportunity to appeal BOP denials in federal courts, it will expedite the review of terminal ill applicants, and it will allow family members and BOP staff to assist prisoners in the application process. FAMM supports the GRACE Act.
The FIRST STEP Act would require the BOP to adopt a risk assessment tool, assess all federal prisoners for their risk of recidivism, and categorize them as minimum, low, medium, or high risk. Some federal prisoners would be able to earn time credits for completing rehabilitative programs, which minimum- and low-risk prisoners would be allowed to redeem for more time in a halfway house or home confinement at the end of a person’s sentence, so long as their warden does not object in writing. Medium- and high-risk prisoners would have to petition to redeem the time credits they earn, but would only redeem credits with approval of the warden and a determination that they are not likely to reoffend and not a public safety threat. Prisoners who cash in their time credits for time on home confinement or a halfway house would be sent back to prison for violating the conditions of their release.
FAMM is supporting a prisoner’s federal court case challenging the Bureau of Prisons’ decision to deny him compassionate release. The case is Avery v. Andrews (No. 18-6996) in the Fourth Circuit Court of Appeals.
Steven Avery is dying of prostate cancer. He is incarcerated at the federal medical center in Butner, N.C., serving a sentence of 151 months for unarmed bank robbery. The BOP recognizes that prisoners like Mr. Avery with a terminal condition who have 18 months or less to live are eligible for compassionate release.
In Mr. Avery’s case, however, the BOP refused to bring a motion for compassionate release to the sentencing court. It said that releasing this dying man would “minimize the severity of his offense and pose a danger to the community” based on his criminal and institutional conduct.
FAMM and others have long argued that federal law gives the BOP the job of identifying prisoners who meet compassionate release criteria (such as being within 18 months of death) and asking the court to release them. Federal law gives the judge discretion to decide whether the prisoner should be released (based on their history, characteristics, seriousness of the offense, among other criteria).
Protecting public safety is important. But the BOP sets itself up as jailer and judge, and in many cases like Mr. Avery’s says “no” for the wrong reasons.
Final BOP compassionate release denials cannot be appealed to federal court. Mr. Avery’s lawyers decided to fight and brought a “habeas corpus” motion in North Carolina. The federal court denied the petition, saying it did not have jurisdiction to review the BOP’s decision.
Now, the case is in the court of appeals, and FAMM is participating with a friend-of-the-court brief.
In our brief, we describe the history of the federal compassionate release law and how the BOP got into practice of denying prisoners.
As with many FAMM amicus briefs, we illustrated the problem with stories from our own members, who, like Mr. Avery, did not get compassionate release.
You can read our brief here. We were happy to be joined in the case by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and to be represented by FAMM Amicus Committee Chair Peter Goldberger, Esq. of Ardmore, Pa.
We will keep you posted on developments.
Past Successes
In 2017, the U.S. Senate Appropriations Committee finally addressed concerns that FAMM has raised about the BOP’s failure to grant compassionate release. Specifically, the Committee’s report directed the BOP to report on what it is doing to increase its use of compassionate release and to provide data on how many compassionate release requests have been granted and denied in the last five years, the reasons for those decisions, how long it took to process the request, and how many people died while waiting for an answer.
Shortly thereafter, 12 U.S. senators wrote a letter to the Bureau of Prisons (BOP) requesting an update on its efforts to expand its use of the compassionate release program. We applauded the lawmakers for holding the BOP accountable for its parsimonious use of the compassionate release program.
In 2016, the Sentencing Commission, against the wishes of the Department of Justice, voted unanimously to broaden and strengthen the criteria for federal compassionate release. The changes included recommendations made by FAMM and other advocates. Ultimately the Commission
- Identified 4 categories of “extraordinary and compelling” circumstances that should prompt the Bureau of Prisons to ask the court to grant compassionate release. They are: Medical Condition, Age, Family Circumstances and Other Reasons.
- “Medical conditions” include (1) terminal illness or a serious medical condition, (2) serious functional or cognitive impairment, or (3) deteriorating health due to aging that will not improve and substantially diminishes the prisoner’s ability to care for him or herself in prison.
- “Age” applies if the defendant is 65 or older, is experiencing serious deterioration in physical or mental health due to the aging process and has served 10 years or 75% of the sentence, whichever is lesser.
- “Family Circumstances” include the death or incapacitation of the caregiver of the prisoner’s minor children, or incapacitation of the prisoner’s spouse or domestic partner when the prisoner would be the only caregiver left.
- “Other” permits the BOP to determine if other reasons not stated in the guideline exist and can be used to support compassionate release.
- Stated that the fact that the extraordinary and compelling reason could have been known or anticipated at the time of sentencing does not prevent the court from granting compassionate release.
- Encouraged the BOP to file a motion in any case for any prisoner who meets any of the criteria and leave it to the sentencing court to determine whether a reduction in sentence is warranted.
In 2013, spurred by criticisms from advocacy groups like FAMM and the Department of Justice’s Office of the Inspector General, the Department of Justice announced that the Bureau of Prison’s had adopted new policies regarding which prisoners will be considered for compassionate release.
The new guidelines implemented some of the recommendations from The Answer is No and the OIG report. It outlines, among other things,
- What constitutes extraordinary and compelling reasons;
- Additional information prison officials should take into account and;
- Information the prisoner (or someone acting for him) must provide to the warden.
The new compassionate release criteria are broken down into three categories: medical, non-medical, and elderly (which in turn breaks down into medical and non-medical). The policy also requires the BOP to track compassionate release requests, handle them more efficiently, and establish personnel at each prison to process and monitor requests.
Resources
“Everywhere and Nowhere: Compassionate Release in the States,” is a comprehensive, state-by-state report on the early-release programs available to prisoners struggling with certain extraordinary circumstances, such as a terminal or age-related illness.
The report takes a deep dive into the regulations and requirements of these programs in each state, including the varying categories of release, eligibility criteria, and reporting. The analysis also reveals a troubling number of barriers faced by prisoners and their families when applying for early release.
The report is accompanied by a comparison chart, 21 recommendations for policymakers, and 51 individual state memos.
More than 30 organizations and individuals endorsed a statement of principles. The principles focus on the humanitarian, public safety, and economic benefits of granting early release to a limited number of disabled and elderly prisoners.
Many Campaign members and others also sent a letter to BOP Director Mark Inch, urging him to expand the program’s use. The letter echoes a similar letter sent by a bipartisan group of senators in August.
Despite successful efforts to strengthen the criteria for compassionate release in the federal system, the process is marred with neglect. The Office of the Inspector General found that in one year only 2 of the 93 elderly inmates who applied for compassionate release for non-medical reasons were granted release. None of the 203 elderly inmates who applied for medical compassionate release received it.
For easy, shareable data on the federal compassionate release program, read our one-pager here.
Read FAMM and Human Right Watch’s report on compassionate release.
The Answer is No: Too Little Compassionate Release in US Federal Prisons
- Letter to the Bureau of Prisons and the Deputy Attorney General on Compassionate Release (August 3, 2017)
- Response from the Bureau of Prisons re: Compassionate Release (January 16, 2018)
- Federal Compassionate Release Data from the Bureau of Prisons
- Understanding the Federal Compassionate Release Process
- Federal Compassionate Release Criteria: Which prisoners qualify?
- New York Times Editorial: Nursing Homes Behind Bars
- 2013 Compassionate Release Rules: Breaking it down
- BOP Policy Statement on Compassionate Release (2013)
- Department of Justice Report on Compassionate Release
- Video: The Broken Promise of Compassionate Release by Steve Sady, Esq.
