30 Days and a “Wake-Up”—The Compassionate Release Countdown

By Paige A. Nichols
Kansas Federal Public Defender

Feb 23, 2020

In December 2018, in the midst of the holiday season, Congress gave us the gift of the First Step Act (FSA). This long overdue criminal justice reform legislation, among other things, ended BOP’s exclusive reign over the compassionate release process. One of the reasons for this reform was the absolute lack of compassion shown toward our incarcerated brothers and sisters facing terminal illness. Inmates were literally dying in BOP custody while their requests for compassion went unanswered. Just over a year after compassionate release was revised, however, BOP’s stats are still pretty abysmal. According to BOP’s first report to Congress on compassionate release stats for 2019, wardens received 1735 requests. The BOP Director approved 55 and denied 171.

Presumably, the remaining requests never made it to the Director. In 2019, 41 people died in BOP custody awaiting compassionate release.

I know these numbers are infuriating, but be not discouraged! There is still hope. The revised version of compassionate release never actually expanded BOP’s capacity to grant these requests.What the FSA did do was empower our clients to go directly to their sentencing judges for the relief that BOP is either unwilling to grant or unmotivated to process in a timely manner. Remember that an inmate can file a motion for compassionate release 1) after exhausting BOP’s administrative remedy process; or 2) if BOP has not responded to a request after 30 days. There are no rules within the First Step Act that limit the time in which BOP must facilitate administrative appeals, so Option #2 is the ideal route for this kind of request.

Now go back and look at the numbers for 2019 again…does it look like BOP is likely to respond within 30 days given the volume of requests they receive? If I were a betting woman, I wouldn’t put my money on it.To the extent we can, clients and their advocates need to take advantage of BOP’s failure to meet the 30-day deadline. This is by far the easiest way to get to get your foot in the door. Keep track of the date the request is delivered to the Warden’s office. We use FedEx, but any service that requires signed receipt will do. Then mark your calendar for 30 days and stay in touch with your client to confirm whether he or she has received a response from the warden of that facility.If not, file the motion.GET YOUR FOOT IN THE DOOR!

Once your client has standing to go directly to the judge, the world is your oyster. My favorite part about going directly to the court is the sentencing judge is NOT bound by BOP’s narrow definition of “extraordinary and compelling” circumstances. The government may disagree, but who cares? The majority view is that the courts have discretion. And, as Professor Berman has noted, some of those courts have found extraordinary and compelling circumstances where the movant would not have been sentenced as harshly today.

In the last six months, two of our clients were released from custody. The first was diagnosed with pancreatic cancer and informed he had a life expectancy of 18 months or less. The 18-month mark is a BOP threshold.My client had been seeking compassionate release to no avail much earlier in his cancer diagnosis. He sought compassionate release on his own for months before the court appointed our office to represent him.This eliminated the 30-day option for us. Instead, we were forced to engage the administrative appeals process. It was extremely difficult to find out the status of his appeal with BOP, let alone get a response to it. Just when we decided we would petition the court on the basis that BOP violated the spirit of the FSA by taking months to respond to a dying man’s appeal, BOP informed me that my client’s request would be granted. Our local USAO filed the motion to reduce my client’s sentence to time served. He was home within 24 hours of the judge signing the order. He is receiving treatment at a nearby oncology center surrounded by people who love him.

The more recent success story was one in which we were able to file the motion for reduced sentence after BOP missed the 30-day deadline.My client did not fall within BOP’s compassionate release-worthy categories. While she was serving a five-year sentence for arson, her special-needs daughter was left in the care of a family member. After an allegation of abuse, the state removed the daughter from the home and placed her in foster care.Although the family member caregiver was not physically incapacitated (BOP’s standard), we argued that the caregiver was legally incapacitated. The government initially objected, but agreed after USPO approved the release plan. The court granted the motion.

I’m not discouraged by the numbers at all. In fact, I’m excited by the opportunity to hold BOP to the 30-day deadline. You don’t even need 31 full days to get your foot in the door. If you countdown like Soldiers in the Army, all you really need is 30 days and a wake-up.

*United States v. Fox , No. 2:14-CR-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019); United States v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *6 (M.D.N.C. June 28, 2019) (“While the old policy statement provides helpful guidance, it does not constrain the Court’s independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A)(i). An interpretation of the old policy statement as binding on the new compassionate release procedure is likely inconsistent with the Commission’s statutory role.”); United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923, at *3 (S.D. Tex. June 17, 2019) (“Because the Commission’s statutory authority is limited to explaining the appropriate use of sentence-modification provisions under the current statute, 28 U.S.C. § 994(a)(2)(C), an amendment to the statute may cause some provisions of a policy statement to no longer fall under that authority ....”) (emphasis in original)); United States v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051, at *4 (S.D. Iowa Oct. 8, 2019) (“Therefore, if the FSA is to increase the use of compassionate release, the most natural reading of the amended § 3582(c) and § 994(t) is that the district court assumes the same discretion as the BOP Director when it considers a compassionate release motion properly before it.”); United States v. Adams, No. 6:94-CR-302, 2019 WL 3751745, at *3 (M.D.N.C. Aug. 8, 2019) (holding that the Director of the Bureau of Prisons’ prior “interpretation of ‘extraordinary and compelling’ reasons is informative,” but not dispositive.); United States v. Bucci, No. CR 04-10194-WGY, 2019 WL 5075964, at *1 (D. Mass. Sept. 16, 2019) (“This Court agrees with Judge Hornby of the District of Maine that interpreting the Sentencing Commission’s guidance on compassionate release today begins with the premise that ‘[t]he First Step Act did not change the statutory criteria for compassionate release, but it did change the procedures, so that the Bureau of Prisons is no longer an obstacle to a court’s consideration of whether compassionate release is appropriate.’”) (citation omitted).

---Laquisha Ross, AFPD