Tuesday, January 19, 2016

Compassionate Release---Without the Irony!

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

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