We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
6TH CIRCUIT HOLDS THERE’S NO EXCUSING EXHAUSTION UNDER COMPASSIONATE RELEASE
The 6th Circuit ruled last week that 18 USC § 3582(c)(1)(A)’s requirement that an inmate first ask the warden to recommend compassionate release, and then either exhaust remedies or wait 30 day before going to court is a “mandatory claims-processing rule” that cannot be waived because of emergency.
Ever since the start of the COVID-19 pandemic in March, the volume of motions filed with federal courts seeking compassionate release has skyrocketed. The statute requires that a prisoner may file the motion with his or her sentencing court only “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier…” A large number of filers skipped that requirement, arguing to their courts that they should be allowed to skip the administrative exhaustion requirement, because the COVID-19 dangers make every second count.
To be sure, the exhaustion requirement makes no sense. First, the notion that anyone can navigate the BOP’s three-level administrative remedy process in under six months is fantasy. The agency not only has 20 to 40 days to respond at each level, but the rules entitle the BOP to automatic extensions of time. An inmate has fair winds and following seas if he or she can push an administrative remedy to conclusion in six months.
Second, the old compassionate release statute permitted only the BOP to file motions for compassionate release on behalf of inmates. Congress became so irked at the BOP’s chary use of its power that in the First Step Act, it granted inmates the right to file themselves. But in order to let the BOP salvage a shred of honor from its stripping the BOP of its sole authority to make such motions, Congress offered the BOP a fig leaf of what is essentially a right of first refusal.
But the odds that the BOP is any more likely to bring such motions now than at any time in the past are really long. That makes the requirement that an inmate make a request to the warden and then wait 30 days little more than a pointless ritual.
No matter. Congress wrote it the way it wrote it, and anyone who recalls those hectic days in December 2018 pushing First Step to fruition should not be surprised that the 149-page bill is somewhat less pellucid that the Declaration of Independence.
Last week, the 6th Circuit held that the exhaustion requirement of the statute means what it says, and that court-made “equitable carveouts” to its terms – including the excuse that the request is an emergency – make no sense. “Remember that Congress made compassionate release available only to elderly prisoners and those with “extraordinary and compelling” reasons for release. For such prisoners, time usually will be of the essence. That would make nearly every prisoner eligible to invoke ‘irreparable harm’ and eligible to jump the line of applications — making the process less fair, not more fair.”
United States v. Alam, 2020 U.S. App. LEXIS 17321 (6th Cir, June 2, 2020)
– Thomas L. Root