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