Just over a year ago, we posted a video of an interview with our client and former federal prisoner, Phillip Smith, who had been denied access to the sentence reduction program known as compassionate release under 18 U.S.C. § 3582(c). Phillip had leukemia that was not responding to treatment, but the Bureau of Prisons (BOP) refused to allow the judge to determine whether these “extraordinary and compelling reasons" (in the language of the statute) warranted a sentence reduction. After litigation regarding the unlawfulness of the BOP’s administration of the statute, the BOP filed a motion that resulted in a sentence reduction to time served. Phillip's interview and links to the litigation are available here
. Shortly after the interview, Phillip died at home.
Last November, Human Rights Watch and Families Against Mandatory Minimums issued a joint report called The Answer Is No: Too Little Compassion In US Federal Prisons
. The report documented the BOP’s failure to provide access to courts as broad as the statutory authorization and the costs – human and fiscal – from the failure to fully implement the ameliorative statute.
Now the Department of Justice’s Office of the Inspector General has issued a report entitled The Federal Bureau of Prisons’ Compassionate Release Program
. The OIG report found that the existing program “has been poorly managed and implemented inconsistently, likely resulting in eligible inmates not being considered for release and in terminally ill inmates dying before their requests were decided.” On the other hand, the OIG stated that an effectively managed compassionate release program would result in significant cost savings to the BOP and help to address the problems resulting from over-capacity populations in federal prisons.
The OIG makes a number of recommendations. Most importantly, the OIG believes that standards should be articulated including eligibility based on both medical and non-medical “extraordinary and compelling” reasons, and, where life expectancy is at issue, eligibility for inmates with a life expectancy of up to 18 months. Although the BOP apparently agrees that an expanded rule would be appropriate, the agency did not share its new written memorandum and indicated that implementation of new rules could take years. If the BOP fails to incorporate the Sentencing Commission’s rule (U.S.S.G. § 1B1.13 and commentary), the BOP’s more restrictive rule will continue to be subject to legal challenge because Congress explicitly delegated to the Commission – not the BOP – the job of defining “extraordinary and compelling reasons” in 18 U.S.C. § 994(t).
Two other recommendations, if put into effect, could make a big difference. The OIG recommended that expedited time-frames should be adopted for processing claims. This change would be critical for increasing the time out of custody for beneficiaries of the program. It would also put a dent in the horrible statistic that, of the mere 208 prisoner requests considered by the Central Office over a six year period, 28 of the inmates died before a decision was made. The OIG also recommended that the BOP effectively communicate the existence of the program to the inmate population. Currently, the vast majority of institutions do not include information about the program in their inmate handbooks, and those that do contain limited and inconsistent information. The BOP agreed that formal procedures to inform prisoners about the compassionate release program should be adopted.
There’s a big lurking litigation issue that is documented but not addressed in the OIG report. In Table 4, the OIG report states that of the 38 requests for compassionate release that were denied in the six years between 2006 and 2011, 22 were denied based on the “seriousness of the offense or criminal history.” That’s 58.7% of the denials. But the BOP is usurping judicial authority under the statute when it refuses to file a motion on that ground. Under § 3582(c), the BOP files a motion with the sentencing court based on “extraordinary and compelling reasons.” The sentencing court then decides whether to grant the motion “after considering the factors set forth in section 3553(a) to the extent that they are applicable.” The seriousness of the offense or criminal history are classic considerations under 18 U.S.C. § 3553(a)(1): “the nature and circumstances of the offense and the history and characteristics of the defendant.” When the BOP arrogates to itself the role of deciding § 3553(a) factors, the agency violates both the statute and the constitutional separation of powers. Once there is a determination of “extraordinary and compelling reasons,” the BOP's only function under § 3582(c) is to file a motion with the sentencing court. The determination of that motion, considering § 3553(a) factors, is a judicial function, not an executive branch decision. As the Supreme Court in Setser
stated about the BOP’s claim of authority to make concurrent and consecutive decisions:
- "[T]he Bureau is not charged with applying [the sentencing factors of] § 3553(a) . . . . It is much more natural for a judge to apply the § 3553(a) factors in making all concurrent-vs.-consecutive decisions, than it is for some such decisions to be made by a judge . . . and others by the Bureau of Prisons . . . ."
- "[S]entencing [should] not be left to employees of the same Department of Justice that conducts the prosecution."
When the BOP refused to file a compassionate release motion for Phillip Smith, the BOP claimed his criminal history warranted denial. The sentencing judge, properly entrusted with making the § 3553(a) determination, readily signed the motion reducing Phillip’s sentence to time served. We can hope the BOP will respond quickly and effectively to the OIG’s recommendations. In the meantime, we need to remain vigilant – in spotting issues, advocating with the BOP, and litigating where necessary – for our clients who, while serving their sentences, suffer medical and non-medical “extraordinary and compelling reasons” that warrant a reduction of their terms of imprisonment.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon