Petitioning for Compassionate Release
As one of the few firms in the nation to have successfully petitioned a federal district court judge for the compassionate release of a client, Tarlton Polk is in a unique position to advise on this reduction in sentence process. Compassionate release – originally introduced into law by the Sentencing Reform Act of 1984, and recently modified under the First Step Act of 2018 – allows inmates to seek a reduction in sentence from their sentencing judge for medical, personal, and familial hardship, or age-related circumstances.
The spread of COVID-19 across the United States jail and prison populations has increased the number of compassionate release requests in the last several months. Jails and prisons across the nation have been ravaged by COVID-19 due to the tight living quarters inherent in these facilities. Inmates who are elderly or who have serious health concerns become especially susceptible to severe illness due to COVID-19.
What is Compassionate Release?
The First Step Act allows inmates in federal prisons and penitentiaries to request a reduction in their sentence through compassionate release, so long as they can demonstrate “extraordinary and compelling reasons” for a reduction in sentence. While the Act has been around for years, it has recently garnered more attention since declaration of COVID-19 as a worldwide health pandemic. Inmates across the country are seeking reductions in sentences to remove themselves from potential COVID-19 “hot spots” inside prisons and jails.
Historically, those seeking compassionate release have been subjected to burdensome administrative processes within the Bureau of Prisons (BOP), making it difficult for inmates to successfully petition for reductions in sentence. Before the First Step Act was introduced in 2018, requests for compassionate release were sent directly to the BOP, and only the BOP could submit the requests to a judge to approve a reduction in sentence. Thus, petitions for release were often left in the hands of the prison system rather than the judicial system. The First Step Act, however, improved this process. Now, lawyers representing inmates can file motions directly with the sentencing judge after the BOP administrative process has been exhausted or if the BOP fails to act on a request from the warden within 30 days of receipt of the inmate’s request (whichever comes first).
Who Qualifies for Compassionate Release?
Inmates with “extraordinary and compelling” circumstances may be eligible for compassionate release and should petition the BOP and their sentencing court for a reduction in sentence. “Extraordinary and compelling” reasons for compassionate release fall into three distinct categories: medical reasons, non-medical reasons, and age-related reasons. Each of these categories has its own set of criteria for a reduction in sentence.
Medical Reasons for Compassionate Release
Medical reasons for compassionate release typically include the diagnosis of a terminal or debilitating medical condition. Terminal medical conditions are those characterized as incurable diseases, resulting in a life expectancy of 18 months or less. The BOP will assess the primary disease, prognosis, impact of other serious medical conditions of the inmate, and degree of functional impairment (if any). Functional impairment refers to the inmate’s limitations on activities related to daily living, such as feeding and dressing oneself. Functional impairment may not be present in terminally ill inmates, but it is a factor BOP will examine to determine whether an inmate is able to re-offend if released.
Debilitating medical conditions are those characterized by incurable, progressive illness or injury, which render the inmate unlikely to ever recover and unable to maintain basic self-care. This includes inmates who are completely bedridden or wheelchair bound. It also includes inmates who are capable or only limited self-care and are confined to a bed or chair more than 50% of waking hours.
In addition to physical injuries, cognitive defects, such as Alzheimer’s disease, also qualify as debilitating medical conditions.
The infiltration of COVID-19 into jails and prisons across the country has exacerbated medical conditions and illnesses for many inmates. Inmates who were once able to manage their illnesses or injuries have become susceptible to severe illness or death if they contract COVID-19. The CDC has declared certain people have a higher risk for severe illness if they contract COVID-19. This list includes:
- People who are 65 years and older.
- People who live in nursing homes.
- People with chronic lung disease or moderate to severe asthma.
- People who have serious heart conditions.
- People who are immune-compromised, including people who have undergone cancer treatment, people who smoke, people who have had bone marrow or organ transplants, immune deficiencies, poorly controlled HIV or AIDS, and people who have undergone prolonged use of corticosteroids and other immune weakening medications.
- People with severe obesity.
- People with diabetes.
- People with chronic kidney disease undergoing dialysis.
- People with liver disease.
Thus, COVID-19 has created a larger subset of inmates who may qualify for compassionate release for medical reasons, even though prior to the pandemic they were able to care for themselves and receive appropriate medical care.
Non-Medical Reasons for Compassionate Release
Non-medical reasons for compassionate release fall into three general categories: requests from elderly inmates; requests based on the death or incapacitation of a family member caregiver; and incapacitation of a spouse or registered partner.
Requests Based on the Age of the Inmate
An inmate may be eligible for compassionate release based on his/her age. There are three ways an elderly inmate may qualify for compassionate release:
- “New Law” elderly inmates who were sentenced for an offense that occurred on or after November 1, 1987, who are age 70 years old or older and have served 30 years or more of their sentence;
- Elderly inmates who are 65 years or older who suffer from chronic or serious medical conditions related to the aging process, are experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility, are unaided by conventional treatment, and who have served at least 50% of their sentence; and
- Other elderly inmates who are 65 years of age or older and who have served the greater of 10 years or 75% of their sentence
Requests Based on the Death or Incapacitation of a Family Member Caregiver
An inmate may be eligible for compassionate release when his/her child’s family member caregiver dies or becomes incapacitated. The child must be under the age of 18. Incapacitation means the family member caregiver suffered a severe injury or suffers from a severe illness and can no longer care for the minor child. When reviewing these requests, the BOP will assess whether release of the inmate to care for the child is actually in the child’s best interests. The following information must be included in a compassionate release request based on the death or incapacitation of a family member caregiver:
- A statement that explains that the inmate’s family member caregiver has died or become incapacitated and that person was the caregiver for the inmate’s biological or legally adopted child;
- A statement that the family member caregiver was the only family member capable of caring for the inmate’s child;
- The name of the deceased or incapacitated family member caregiver and the relationship of that person to the inmate (e.g., spouse, common-law spouse, mother, sister, etc.) and a statement that the caregiver is a family member of the child;
- An official copy of the family member caregiver’s death certificate, for requests based on the death of the family member caregiver;
- Verifiable medical documentation of the incapacitation, for requests based on incapacitation of the family member caregiver;
- Verifiable documentation that the inmate is the parent of the child (e.g., birth certificate, adoption papers, or other verification of the inmate’s paternity);
- Verifiable documentation providing the name and age of the child;
- A clear statement and documentation that the inmate has a release plan, including housing, and the financial means to care for the child immediately upon the inmate’s release; and
- Authorization from the inmate for the BOP to obtain any information or documents from any individual, medical entity or doctor, or any government agency about the inmate, family members, and minor child
The Warden often denies the initial request by inmates for failure to provide adequate documentation, which is why it is imperative to engage counsel to assist in this process. However, if the inmate has provided the necessary documentation, the request moves on to a second review in which the Warden convenes a committee to investigate the facts and circumstances provided by the inmate and to review any supporting letters and documents gathered by committee. The committee consists of the inmate’s unit manager, correctional counselor, and any other relevant staff (e.g., social worker, physician, psychologist, etc.). The supporting letters and documentation gathered by the committee and submitted to the Warden for review include:
- Information indicating whether the family member was, in fact, caring for the child during the inmate’s incarceration and immediately prior to the family’s member’s death or incapacitation;
- An explanation of who has been caring for the child since the family member’s death or incapacitation; and
- If the child is in foster care, documentation verifying that the inmate will be able to immediately obtain custody of the child
This may require committee members to reach out to the person now caring for the minor child. This can be a difficult process for the family member or friend stepping in to care for the inmate’s child. Hiring a lawyer can ensure the process is thoroughly explained to the interim caregiver to ensure the inmate’s best chance for release. The Warden may also consider letters of support from other family members, neighbors, friends, doctors, hospitals and state or local agencies.
In addition to supporting documentation, the Warden will consider:
- To what degree the inmate has had contact with or cared for the child prior to arrest, pretrial or pre-sentence, and during incarceration (this may include prison staff reviewing the inmate’s e-mail, call, mail and visitation records);
- Whether there was any evidence of child abuse, neglect or exploitation in the Presentence Investigation Report prepared by the United States Office of Probation;
- Whether there exists any documentation regarding the inmate’s parenting skills or obligations (e.g., child support orders, restraining orders for physical and/or emotional abuse of a spouse or the child, certificates for classes in anger management or other types of counseling, and removal of the child from the home for any reason);
- Whether the inmate ever lost custody of the child or other children;
- Whether the inmate’s parental rights were ever terminated;
- Whether the inmate has ever received public funding or had a job with a living wage for any period of time prior to incarceration;
- Whether the inmate has engaged in programs while incarcerated that would indicate efforts to improve parenting skills, such as parenting classes or anger management classes;
- Whether the inmate has committed acts of violence before or during the period of incarceration; and
- Whether the inmate had drugs, drug paraphernalia, firearms, or other dangerous substances in the home while caring for the child prior to incarceration
If an inmate is released and it is determined the inmate is not appropriately caring for the child, the inmate can be returned to custody.
Requests Based on Death or Incapacitation of a Spouse of Registered Partner
An inmate may be eligible for compassionate release when his/her spouse or registered partner becomes incapacitated if the inmate would be the only available caregiver for the spouse or registered partner. Spouse refers to an individual in a relationship with the inmate, where that relationship has been legally recognized as a marriage, including a legally recognized common-law marriage. Registered partner refers to an individual in a relationship with an inmate, where that relationship has been legally recognized as a civil union or a registered domestic partnership. There relationship must have been established prior to the inmate’s date of arrest.
A spouse or registered partner is deemed “incapacitated” if he/she has suffered a serious injury or debilitating physical illness and the result of the injury or illness is that the spouse or registered partner is completely disabled (meaning the spouse or registered partner cannot carry on any self-care or is totally bedridden or wheelchair bound). Incapacitation can also include a severe cognitive defect, such as Alzheimer’s disease or traumatic brain injury that has severely affected the spouse’s or registered partner’s mental capacity or function.
The inmate must establish that the inmate is the only available caregiver for the spouse or registered partner, meaning there is no other family member or adequate care option that is able to provide primary care for the spouse or registered partner.
The Compassionate Release Process
Step 1: Submit a Request for a Motion to the Warden
To begin the compassionate release process, inmates must submit a written request (by themselves or through counsel) to the BOP outlining the “extraordinary or compelling reasons” for their release. The request must contain a detailed explanation of the reasons for release and a proposed release plan, including:
- Inmate’s “extraordinary or compelling reasons” for release;
- Inmate’s place of planned residence;
- Inmate’s ability to support themselves;
- Inmate’s medical treatment information (if release is medically-related);
- Inmate’s plans to pay for medical treatment (if release is medically-related).
Step 2: Warden Conducts Two-Stage Review and Evaluation of Request for Motion
Depending on the nature of the request (e.g., medical compassionate release request v. non-medical compassionate release request), there are different requirements that must be met to be eligible for release. As such, each type of compassionate release request is evaluated under a different set of criteria. There are, however, several factors the BOP considers in all compassionate release requests:
- The inmate’s criminal history.
- The nature of inmate’s offense.
- Whether the inmate has ever had any supervised release violations.
- Victim-impact statements.
- Whether the inmate has had any disciplinary infractions while incarcerated.
- The inmate’s current age.
- The inmate’s age at sentencing.
- The length of time the inmate has been incarcerated.
- The inmate’s release plans.
- The inmate’s institutional adjustment.
- The impact on severity of offense if the inmate is granted release.
- The potential danger associated with the inmate’s release.
The Warden will conduct an initial review of the inmate’s request. If the inmate has submitted the requisite documentation, the warden will convene a committee to investigate the inmate’s request more thoroughly. This may include interviewing family members, doctors, previous and future employers, victims, neighbors and other individuals who can determine whether releasing the inmate would pose a risk to society.
Step 3: Approval/Denial of Request
Following the review process, the BOP will issue a decision regarding whether or not to file a motion for reduction of sentencing with the sentencing court. If the BOP approves the inmate’s request, the motion will be filed on their behalf. If the BOP denies the request, inmates may appeal internally with the BOP or request that defense counsel file a motion directly with the sentencing court.
COVID-19 (Coronavirus) and the CARES Act
When World Health Organization declaration of COVID-19 a global pandemic, Congress passed the CARES Act, which allows courts to waive limits on home confinement. Prior to enactment of the CARES Act, home confinement was only eligible for inmates who had 10% of less of their sentence left to serve. The CARES Act, however, has expanded inmate eligibility for home-confinement. In cases where compassionate release is not an option, inmates may request home-confinement to avoid the risk and/or exposure COVID-19 brings to the prison populations.