By Clare A’Hearn
In the United States there are currently over 158,000 people incarcerated in federal penitentiaries. Compassionate release provides an opportunity of reentry to these incarcerated individuals, but compassionate release is not granted at a sufficient rate, even when individuals can prove the “extraordinary and compelling reasons” mandated for approval.
Compassionate release, per Section 3582(c)(1)(A) of title 18 of the United States Code, allows a court to reduce a person’s terms and length of incarceration with “extraordinary and compelling reasons” and was started in 1984 with the passing of the Sentencing Reform Act. It was left purposefully vague, with Congress anticipating that wardens and courts could act leniently. However, there is a provided set of criteria that individuals are able to file under: medical conditions (terminal or debilitating), elderly age, family conditions (death or incapacitation of family member/caregiver), or other.
To apply for compassionate release, an incarcerated person at a federal prison needs to file a request with the warden of the prison, providing documentation to support the “extraordinary and compelling reason” they are filing under, such as twelve supporting documents to prove capability and death or incapacitation of a partner or child’s caregiver. They are referred to the U.S. Department of Justice Bureau of Prisons’ Office of General Counsel then sent to the director of the Bureau of Prisons (BOP). If the director approves, they can request the U.S. Attorney in the given jurisdiction to file a motion that will reduce the sentence’s length to “time served” and a sentencing court will commence where the incarcerated individual will have to provide additional supporting documentation. There are avenues that a person may take if they are denied throughout the process, such as the BOP’s Administrative Remedy Program, appeal to the Circuit Court of Appeals or reapplication one year after denial.
An issue arises with the inconstancy in the courts that the individuals encounter throughout the compassionate release process, as “the likelihood that an offender would receive compassionate release substantially [varies] by circuit, from a grant-rate high of 47.5 percent in the First Circuit to a low of 13.7 percent in the Fifth Circuit.” Incarcerated people are forced through the courts and the complications of bureaucratic processes while these systems ignore the suffering of incarcerated individuals and their family members. While the information is being processed, and an exorbitant amount of documentation is requested, they are still in prison. An individual is unable to alleviate the issue that is the reason for their requesting compassionate release such as receiving more intense medical treatment or giving care to family. It would be additionally beneficial to include a broadening of medical compassionate release to include primary caregiver for an elderly parent or an incapacitated child or sibling.
It is recommended that individuals applying for compassionate release hire a lawyer to aid with the process. However, an overwhelming number of incarcerated individuals lack the financial resources to do so. With the passing of the First Step Act in 2018, an amendment to Section 3582(c)(1)(A), incarcerated people applying for compassionate release were able to file the motion in federal court after “satisfying an administrative exhaustion requirement” by submitting documentation to their warden.
The proposal that the current state of compassionate release in the United States is not functioning effectively is not new. In 2013, the Office of Inspector General Report concluded “The BOP does not properly manage the compassionate release program, resulting in inmates who may be candidates for release not being considered.” In 2017, twelve U.S. senators wrote to the previous director of the BOP expressing concern that “the BOP is not fulfilling its role in the compassionate release process.” The BOP was not responsive to the criticism.
Discussions around compassionate release resurfaced in 2020 with the onset of the COVID-19 pandemic. Incarcerated people with underlying conditions began applying for compassionate release as to not contract COVID-19 in prisons that were not following proper protocol, but often it was deemed that their conditions were ineligible as they did not fit into the “terminal or debilitating” categories. As of June 2021, 31,000 incarcerated individuals applied for compassionate release, yet only 36 were released. 35 died while awaiting the result of their compassionate release petition.
Incarcerated individuals encounter horrific conditions associated with incarceration, from violence and sexual abuse to overcrowding and health threats. They should not also be subjected to the complicated bureaucratic procedures that compassionate release applications currently demand.
