Who can grant compassionate release?

The compassionate release provision of 18 U.S.C. §3582 allows a district court to reduce the sentence of an incarcerated person in “extraordinary” and “compelling” circumstances. For over three decades, this law permitted only the Bureau of Prisons (“BOP”) to file motions for compassionate release. Because of the BOP rarely filed such a motion, very few cases ever reached the federal courts. The First Step Act of 2018’s provision allowing incarcerated persons to file their own request, coupled with the Covid-19 pandemic, triggered a massive upswing in prisoners seeking compassionate release.

How does compassionate release work?

Through the Sentencing Reform Act of 1984, Congress abolished federal parole and prohibited the federal courts from modifying a term of incarceration once it was imposed. Congress instead created an exception known as compassionate release. Federal courts could reduce a sentence when warranted by extraordinary and compelling reasons. For the next thirty-four years, only the BOP’s Director could file motions for compassionate release. Yet the Director seldom utilized this power. The BOP approved only 6% of 5,400 compassionate release applications between 2013 and 2017. (See Frail, Old and Dying, but Their Only Way Out of Prison Is a Coffin, N.Y. Times, March 7, 2018). Between 2013 and 2017, 266 prisoners died in custody awaiting the Director to review their applications, half of whom were serving sentences for nonviolent fraud or drug offenses. In 2018, only twenty-four prisoners were released under 18 U.S.C. §3582(c)(1)(A). (See U.S. Sentencing Commission, The First Step Act of 2018: One Year of Implementation 47 and n.143, Aug. 2020).

The Sentencing Reform Act of 1984 also directed that the Sentencing Commission describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Ignoring the directive from Congress for twenty-two years, the Commission issued its first policy statement regarding compassionate release in 2006. Still, the 2006 policy did not define “extraordinary and compelling reasons.” The Commission did amend the commentary’s application notes in 2007, 2010, 2016 and 2018 to describe an ever growing list of “circumstances” where “extraordinary and compelling reasons exist.” But the main text has never defined – and still does not define – “extraordinary and compelling reasons.”

Frustrated with the BOP’s approach, Congress sought to boost grants of compassionate release by reforming 18 U.S.C. §3582(c)(1)(A)’s procedures in the First Step Act of 2018. Now, a federal prisoner may file a motion for compassionate release after 1) exhausting the BOP’s administrative process or 2) thirty days after the Warden received the compassionate release request – whichever is earlier. See 18 U.S.C. §3582(c)(1)(A) (2020).

With this historical backdrop, let’s consider how relevant portions of the Federal statutory text of 18 U.S.C. §3582(c)(1)(A) currently reads:

(c) Modification of an imposed term of imprisonment. – The court may not modify a term of imprisonment once it has been imposed except that –

  (1) in any case –

    (A) the court, upon motion of the director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that –

       (i) extraordinary and compelling reasons warrant such a reduction or

       (ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and 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, as provided under section 3142(g)

      and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission….

Is compassionate release easy to acquire?

Data suggests there have been more compassionate releases after Congress removed the barrier prohibiting a prisoner from requesting compassionate release though the federal court. In 2019, federal courts granted 145 compassionate release motions. Incarcerated individuals filed ninety-six (61.1%) of the motions, and the BOP filed the other forty-seven (32.9%). In the second year of the First Step Act’s implementation, a year defined by Covid-19, the BOP denied or ignored more than 98% of compassionate release requests in the first three months of the pandemic. Now unhindered by the BOP’s procedural bars, incarcerated persons’ filing and federal courts’ granting 18 U.S.C. §3582(c)(1)(A) motions have surged this year. 10,940 federal prisoners applied for compassionate release between March and May of 2020, and federal courts have compassionately released an estimated 1,700 persons in 2020 so far. (Compare U.S. Sentencing Commission, The First Step Act of 2018: One year of Implementation, note 1, at 47 (24 grants of compassionate release in 2018 145 grants in 2019) with Federal Bureau of Prisons, First Step Act, 1,992 grants since December 2018. Statistics available at www.bop.gov).

Does compassionate release work?

From the plain text of the revised statute, the reader can glean the necessary ingredients for the court’s compassionate release analysis. Congress’s use of “may” dictates that compassionate release is discretionary, not mandatory. Thus, when an applicant is denied compassionate release by the district court and appeals, the appellate court will review the denial using the abuse of discretion standard. (See United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020)).

Three clauses in 18 U.S.C. §3582(c)(1)(A) contain substantive requirements for a court’s compassionate release decision: 1) finding that extraordinary and compelling reasons merit a sentence reduction 2) finding that the reduction is consistent with applicable Sentencing Commission policy statements and 3) considering the applicable §3553(a) factors. Due to the confusing and oddly placed commas, the sequence in which district courts must fulfill these statutory requirements and the relationship between the three clauses is not apparent. However, at least one appellate court determined district courts must engage in these three inquiries in the sequence listed. See U.S. v. Ruffin, 978 F.3d 1000 (6th Cir. 2020).

Who can get compassionate release?

One frequent factor weighed by both a court and the BOP when considering compassionate release, is a prisoner’s ability to engage in self-care. Another consideration is whether or not the BOP is able to meet the applicant’s medical needs. Many applications have been made seeking compassionate release due to overcrowding and Covid-19 concerns. Most of the applicants also have some form of underlying health concerns. Yet compassionate release is generally not granted to those who have the ability to perform self-care. So, while compassionate release is more readily accessible to prisoners, it is still difficult for most prisoners to acquire.

Difficulty may be even an understatement. For example, in United States v. Vangh (No. 19-3795, 8th Cir., decided Mar. 15, 2021), the applicant was legally blind and deaf, suffered from dizziness, heart issues, diabetes, glaucoma, kidney disease, hyperkalemia, hypotension, severe nasal dryness and chronic neck pain with a history of cancer. Vangh’s Warden agreed with his compassionate release request but general counsel for the BOP did not and refused to file a motion on Vangh’s behalf. Vangh then filed his own motion which the district court denied, finding that Vangh suffered from serious health issues, but nevertheless denied relief on the grounds that his medical needs were being met.

Another case reveals even when a defendant has a serious medical issue, the court can consider the criminal case to deny relief. In United States v. Kibble (No. 20-7009, 4th Cir., decided Apr. 1, 2021), the defendant was sentenced to 57 months of imprisonment. Defendant entered prison born with tricuspid atresia, a heart condition that required two open heart surgeries, a cardiac catheterization procedure, and a surgery to redirect blood from his lower body to his lungs. Kibble also had non alcohol related cirrhosis of the liver. The district court found Kibble presented extraordinary and compelling reasons for receiving compassionate release. However, the court denied relief because the sentencing court had found his crime “despicable” and “inexcusable.” Kibble had traveled across state lines to engage in what he believed was sex with a fourteen year old girl.

I have one final thought on compassionate release. While it appears illusive for most, it certainly won’t happen for the prisoner who fails to apply for the potential relief. I recommended anyone with a serious medical issue to apply for compassionate release with the facility’s Warden. If denied by the Warden, to adhere and follow the required administrative appellate process. The statute requires administrative exhaustion before a prisoner submits any motion to the applicable District Court. Failure to exhaust administrative remedies appears to be an affirmative defense, meaning it must be argued by the defendants (See United States v. Williams (No. 20-2404), 7th Cir., decided Feb. 10, 2021), similar to the Prison Litigation Reform Act. Exhaustion will require the motion to be decided on the merits, not lost on a technicality.