In broadening
the bases for granting early release in the proposed amendments of the
compassionate release guideline, §1B1.13, the Sentencing Commission recognizes
that old age and responsibilities to others are valid considerations in
deciding how long an offender should remain imprisoned. Although the amendments
are directed only at early release under 18 U.S.C. § 3582(c)(1)(A), the
rationale of the amendments should provide some fodder for requests for
variances for defendants who are older than the norm or who act as sole
caregivers for minor children or incapacitated spouses/partners.
Family ties. The policy statement governing
departures based on “family ties and responsibilities,” USSC §5H1.6, is harsh,
and appellate courts typically share the Commission’s disdain for this type of
mitigation. The Tenth Circuit, for example, has reversed the grant of a
departure to a widowed parent of three minor children, noting that “[o]ther
circuits have also held that a defendant's status as a single parent does not
constitute an extraordinary family circumstance warranting departure.” United States v. Rodriguez-Velarde, 127
F.3d 966, 968-69 (10th Cir. 1997). But even the existing version of the
compassionate release guideline, §1B1.13, is in tension with §5H1.6: The
current version of the compassionate release guideline labels “[t]he death or
incapacitation of the defendant's only family member capable of caring for the
defendant's minor child or minor children” as an “extraordinary and compelling
reason[]” for a sentence reduction. USSG §1B1.13. The family ties and
responsibilities guideline contains no such categorical statement.
The amendment
to §1B1.13 would liberalize the compassionate release policy in two ways.
First, while the current commentary to this provision requires that the death
or incapacitation be that of the “only
family member capable of caring for the defendant's minor child or minor
children,” §1B1.13, cmt. n. 1(A)(iii) (emphasis added), the proposed amendment
would drop “only” from this provision. Second, the proposed amendment would recognize
an additional ground for compassionate release: the incapacitation of the
defendant’s “spouse or registered partner,” so long as the defendant is the
“only available caregiver” for the incapacitated spouse or partner.
Age. In the “issue for comment” section of the proposal, the
Commission at least implicitly endorsed several bases for seeking variances for
older defendants:
In
May 2015, the Department of Justice’s Office of the Inspector General (OIG)
released a report on the Bureau of Prisons’ implementation of the compassionate
release program provisions related to elderly inmates. See U.S. Department of
Justice, Office of the Inspector General, The Impact of the Aging Inmate
Population on the Federal Bureau of Prisons, E-15-05 (May 2015), available at
https://oig.justice.gov/reports/2015/e1505.pdf. The report found that while
aging inmates (age 50 years or older) make up a disproportionate share of the
inmate population, are more costly to incarcerate (primarily due to medical
needs), engage in less misconduct while in prison, and have a lower rate of
re-arrest once released than their younger counterparts, “BOP policies limit
the number of aging inmates who can be considered for early release and, as a
result, few are actually released early.”
This
paragraph could be cited to support variance arguments based on cost and the
reduced need for incapacitation and specific deterrence of older defendants.
The paragraph also refutes the notion that the BOP can be trusted to release
older inmates who should no longer be incarcerated. When seeking variances for
older offenders, this language could be used to rebut government arguments
based on the claimed availability of early release.
Contributed by Tom Bartee