We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BOP ADMITS FEWER THAT 10% OF COMPASSIONATE RELEASE BIDS MAKE IT PAST THE DIRECTOR

Nearly six months after 16 Senators requested it, the Bureau of Prisons has finally come off compassionate release numbers for the last three years.

Under 18 USC 3582(c)(1), a prisoner who has extraordinary reasons – usually medical, age-related or family-related – may receive a reduction in sentence (RIS). An inmate must first get a recommendation from the institution warden, and then approval of the BOP Director. If the Director forwards the motion to the sentencing court, the district judge will then decide the motion.

From January 1, 2014, through the end of 2017, 3,182 inmates sought RIS relief. Only one out of four made it past the first level of review, the warden of the prison in which the inmate was held. At the Director’s office, only 306 requests, or 9.6% of the total originally filed, made the cut.

About 25% of RIS requests came from dying inmates. Another 35% came from seriously ill (but not terminal) inmates. Elderly inmates with medical conditions were another 15%, and elderly inmates who were otherwise healthy constituted 8%. Inmates who were sole caregiver for a child constituted 9% of the requests, and people needing to care for a spouse were 3.4% of the requests.

The RIS requests with the most chance of approval came from terminally ill inmates. One half of all such requests made it to the Director. Another 16% of requests from seriously ill inmates were referred. One out of four requests from elderly prisoners with medical conditions made the cut, while one-third of healthy elderly prisoners’ requests were approved by wardens. Approvals for caregivers of spouses and kids came in at under 15%.

It takes about 4-1/2 months to get the Director’s approval. The BOP did not break down which categories were approved in what numbers by the Director, but it admitted that 81 inmates died while waiting for approval of their RIS requests.

The BOP has been engaged in an inter-agency fight with the Sentencing Commission for control of the compassionate release process for more than a year. The Sentencing Commission believes that the BOP should only determine that inmates meet eligibility standards, and leave decisions about whether they are deserving of a lower sentence to judges.

The BOP told the Senators that RIS requests were usually denied because its criteria were not met, including

• the inmate did not meet the medical condition criteria;
• the inmate’s medical condition did not impact ability to function in prison;
• the inmate had not served enough time toward his sentence required by the elderly inmate criteria;
• the inmate could not show he or she was the sole family member capable of providing care to a child, spouse, or registered partner; or
• the inmate lacked stable residence and release plans.

The sentencing advocacy group Families Against Mandatory Minimums was quick to blast the BOP letter. “We are disappointed but not surprised,” FAMM president Kevin Ring said. “Even as interest in prison reform grows, we find that the BOP is not using its authority to reduce the number of low-risk, high-cost individuals in federal prisons. This failure hurts families and taxpayers without improving public safety.”

Sentencing Law and Policy, Lamenting latest data on how federal Bureau of Prisons administers its compassionate release program (Feb. 9, 2018)

FAMM, New Data Reveals BOP Still Neglecting Compassionate Release (Feb. 8, 2018)

Letter from BOP Office of Legislative Affairs to Sen. Brian Schatz (Jan. 16, 2018)

– Thomas L. Root

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PRESSURE’S TURNED UP ON BOP COMPASSIONATE RELEASE

Up to now, the BOP compassionate release program has seemed like the weather: everyone talks about it, but no one does anything about it.

Under 18 USC 3582(c)(1), the BOP director is empowered to recommend the compassionate release of an aged, infirm or sick inmate to his or her sentencing judge. The district court then makes the call whether to release the prisoner or not. It is an open secret that while the BOP constantly wrings its bureaucratic hands over its soaring costs of inmate care, an inmate has perhaps a better chance of being struck by lightning than he or she does being recommended or compassionate release. On average, about 575 applications for compassionate release are filed annually: the number actually granted averages about 24.

In 2013, the DOJ Inspector General encouraged the BOP to step up its game. Two years later, the IG’s aging inmates study found “aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released.” In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

Last July, Sen. Richard Shelby (R-Alabama) – chair of the Senate Appropriations Committee Subcommittee on Commerce, Justice, Science and Related Agencies – ordered the BOP to turn over a gold mine of data on the compassionate release program. Sen. Shelby gave the BOP 60 days to deliver the data, but what the BOP provided the Committee has not been revealed.

(Full disclosure: LISA filed an FOIA request with the BOP two months ago to get a copy of what the Committee was given. So far, no response).

Finally, last August, four U.S. senators wrote a letter to the BOP requesting an update on its efforts to expand its use of the compassionate release program.

Now, a coalition of Families Against Mandatory Minimums (FAMM), American Conservative Union Foundation, Human Rights Watch, National Council of Churches, Law Enforcement Action Partnership, and National Disability Rights Network, have formed The Campaign for Compassionate Release. “It is cruel and senseless to prisoners and families alike to abandon an individual to suffer or die alone in prison, separated from loved ones,” FAMM General Counsel Mary Price said in a press release. “These prisoners are the least dangerous and most expensive to lock up, yet compassionate release often exists in name only. It often fails the people it is intended to help. And we’re fed up.”

While the Campaign will target both federal and state policies, the first stages of the launch focus on reforms to the federal compassionate release program. Last week, the Committee sent a letter to BOP Director Mark Inch, urging him to expand the program’s use. In addition to appealing directly to Inch, FAMM has also released a series of videos highlighting the kinds of cases the BOP either ignores or denies. 

Families Against Mandatory Minimums, FAMM Announces Launch of National Campaign for Compassionate Release (Dec. 7, 2017)

Reason.com, Pressure Builds on Bureau of Prisons to Release Elderly and Sick Inmates (Dec. 8, 2017)

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THREE UNRELATED STORIES MAY PORTEND CHANGE IN COMPASSIONATE RELEASE

Sometimes, interesting stories come in triplicate.

Story 1: Late last week, the Government Accountability Office reported that the Federal Bureau of Prisons’ cost of providing healthcare to inmates had jumped 30% in the last four years. The BOP now spends over $8,600 per year to meet each inmate’s health needs.

The GAO report found that while the BOP knows how much it is spending on healthcare, it lacks utilization data, “which is data that shows how much it is spending on individual inmate’s health care or how much it is expending on a particular health care service.”  A 2015 Dept. of Justice Inspector General’s study contained the unsurprising report that aging inmates cost more to incarcerate due to higher healthcare costs.

At the same time, number of 55-year old and older inmates has increased from 8.4% of the inmate population in 2009 to 12.0% in FY 2016.

Story 2: Under 18 USC 3582(c)(1), the BOP director is empowered to recommend the compassionate release of an aged, infirm or sick inmate to his or her sentencing judge. The district court then makes the call whether to release the prisoner or not. It is an open secret that while the BOP constantly wrings its bureaucratic hands over its soaring costs of inmate care, an inmate has perhaps a better chance of being struck by lightning than he or she does being recommended or compassionate release. On average, about 575 applications for compassionate release are filed annually: the number actually granted averages about 24.

In 2013, the DOJ Inspector General encouraged the BOP to step up its game. Two years later, the IG’s aging inmates study found “aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released.” In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

The BOP has remained remarkably immune to DOJ’s exhortations and the Sentencing Commission’s gentle prodding. Late last week, Congress stepped into the breach.

In a report accompanying the 2018 appropriations bill, Sen. Richard Shelby (R-Alabama) – chair of the Senate Appropriations Committee Subcommittee on Commerce, Justice, Science and Related Agencies – ordered the BOP to turn over a gold mine of data on the compassionate release program. Sen. Shelby wants to see (1) the steps BOP has taken to implement the IG’s and Sentencing Commission’s suggestions; (2) a detailed explanation as to which recommendations the BOP has not adopted (which we think would be all of them) and why they were rejected; (3) the number of prisoners seeking compassionate release in each of the last five years, how many were granted and how many denied (“categorized by the criteria relied on as grounds” for each decision, as the Report puts it); (4) the amount of time between each request being filed and being acted on; and (4) how many inmates died while waiting for a BOP compassionate release decision .

Sen. Shelby is giving the BOP 60 days to deliver the data.

As of last June, about 35,000 federal prisoners are over the age of 51. More than 10,000 of those inmates are over 60.

Story 3:  There’s a new sheriff in town. Yesterday, Attorney General Jefferson Beauregard Sessions III announced that Army Major General Mark Inch will serve as the new BOP director, replacing acting director Thomas Kane.

Sessions said, “As a military policeman for nearly a quarter of a century and as the head of Army Corrections for the last two years, General Inch is uniquely qualified to lead our federal prison system.”

Inch, who as Provost Marshal General of the Army and Commanding General, United States Army Criminal Investigation Command and Army Corrections Command, was the Army’s top cop, has been a soldier for 35 years. He has professional certification with the American Correctional Association (ACA) and was the first Army officer to earn the Certified Corrections Executive designation with Honor.

Wrap-up: We’re just speculating here, but Inch – who led the Army Corrections Command after the international embarrassment at US-run Abu Ghraib prison in Iraq – is an outsider to the BOP and a man who is used to the chain of command. He may be more likely to follow the directives of Congress and the DOJ, and be open to the guidance of the Sentencing Commission – while at the same time being resistant to the “we’ve-always-done-it-that-way” mentality of the agency he has been tasked to lead.

In short, this could be a pivotal moment for the BOP Director’s exercise of the compassionate release power under 18 USC 3582(c)(1).

Government Accountability Office, Better Planning and Evaluation Needed to Understand and Control Rising Inmate Health Care Costs (July 27, 2017)

Senate Committee on Appropriations, Draft Report on Commerce and Justice, Science and Related Agencies Appropriations Bill, 2018 (July 25, 2017)

The Hill, Sessions adds Army general to oversee federal prisons (Aug. 1, 2017)

– Thomas L. Root