What is Compassionate Release at the BOP?
“Compassionate Release” refers to a program at the federal Bureau of Prisons that allows an inmate in certain situations to be released from custody before the complete sentence has expired. The Compassionate Release program is discretionary with the BOP, but . recent change sin the law now allow an inmate to petition the district court directly if the prison denies a compassionate release request.
Under the First Step Act, federal prison inmates and people with loved ones serving long prison sentences now have a new opportunity to seek a sentence reduction or an early release from prison. That’s because the First Step Act significantly expanded the Bureau of Prison’s “Compassionate Release Program.”
Before, early release under the Compassionate Release Program was only available if an inmate requested it from the BOP and the BOP agreed to file a motion with the court requesting the inmate’s release. As you might expect, the BOP rarely ever files early release motions for their inmates. Now, however, inmates and their lawyers can directly petition the court for early release even if the BOP refuses their request.
How do I file a motion for Compassionate Release?
Before you can file a motion directly with the Court, there are a few procedural hoops you have to jump through. You can only file a motion for early release with the court if you meet one of these two requirements:
- You requested early release from the BOP under the Compassionate Release Program and the BOP waited more than 30 days to respond to the request; or
- You requested early release from the BOP, the BOP rejected your request, and you have “exhausted all administrative remedies” available through the BOP.
Because the BOP usually responds to requests for early release, and usually rejects those requests, it’s important to know exactly what it means to exhaust all available administrative remedies because, otherwise, you can’t file a motion for early release with the court. “Exhausting all administrative remedies” basically means appealing the BOP’s decision to reject your early release request all the way up the chain of command until you have a “Final Decision.”
This is the usual process that leads to a Final Decision:
- Inmate requests that the BOP file a motion for the inmate’s early;
- Warden responds within 30 days and either denies or grants the request;
- If the Warden rejects the request, the inmate has 20 days from the date of the Warden’s response to appeal the Warden’s decision;
- The Regional Director grants your appeal or affirms the Warden’s decision;
- If the Regional Director affirms the Warden’s decision, the inmate has 30 days to file an appeal;
- The General Counsel for the BOP or the BOP Director then makes a final decision on the inmate’s request.
Once the BOP rejects your final appeal, you can file a motion with the court. Your motion must be filed in the same federal district where you were sentenced and will usually go in front of the same judge who imposed the sentence.
How can I win my Motion for Compassionate Release?
Getting your motion in court is only half the battle. To actually win the motion, your motion must do three things:
- Present “Extraordinary and Compelling Reasons” justifying your early release from prison.
- Show that your early release from prison would not put anyone in the community at risk and that early release is reasonable under the factors of 18 U.S.C. § 3553;
- Recommend conditions of supervised release that would accommodate an early release from prison.
What are “Extraordinary and Compelling Reasons”?
There are two standards defining “Extraordinary and Compelling Reasons” under the Compassionate Release program. The BOP has issued its own standards, as has the U.S. Sentencing Commission. In fact, the Sentencing Commission’s standards have a broader definition for “Extraordinary and Compelling Reasons” than the BOP. You can cite both standards in your motion to the court.
The Sentencing Commission includes the following reasons as “Extraordinary and Compelling Reasons” under U.S.S.G. § 1B1.13:
- Medical condition – An inmate’s medical condition can support their early release if they suffer from a terminal illness or are suffering from a serious mental or physical health condition. Notably, the BOP defines “terminal illness” as an illness that carries a life expectancy of less than 18 months, while the Sentencing Commission does not require any particular life expectancy prognosis to be considered terminally ill.
- The age of the defendant – The Sentencing Commission considers the age of the defendant an extraordinary and compelling reason for early release when the inmate is 65 years or older, is experiencing a “serious deterioration” in physical or mental health due to their age, and has served at least 10 years or 75% of their sentence, though having served that much time is not required.
- Family Circumstances –Family circumstances present an extraordinary and compelling reason if your child’s caregiver dies or becomes incapacitated or if your spouse or partner does and there is not an adequate alternative caregiver available.
What are the factors under 18 U.S.C. § 3553 and how do I prove I’m not a risk to the community?
As discussed above, an inmate can only be released by the court under the Compassionate Release program if their early release is supported by the factors under 18 U.S.C. § 3553 and if their release would not pose a danger to the community.
The factors under § 3553 are the same factors courts consider when imposing sentences. These factors include, but are not limited to:
- The nature of the offense
- The history and characteristics of the inmate
- The kinds of sentences available (like home confinement)
- The need for the sentence imposed to reflect the seriousness of the offense
- The need for the sentence imposed to afford adequate deterrence to criminal conduct
- The need for the sentence imposed to protect the public.
Of course, some of these factors may be weighed differently than at sentencing after an inmate has spent time incarcerated. For example, there may be less of a need to keep an inmate incarcerated to deter other criminal conduct or protect the public if the inmate is elderly or suffers from poor health. Additionally, the First Step Act increases the availability of home detention for many defendants, and that is related to the “kinds of sentences available.”
As for evaluating the risk an inmate’s release may pose to the community, the appropriate standard is the standard articulated in the Bail Reform Act, which judges consider when determining whether to release a defendant on bond while awaiting trial. In cases where the inmate was granted a bond before their trial or guilty plea, this can be powerful evidence that they won’t pose a risk to the community.
What kinds of conditions of supervised release can my motion recommend in order to justify my early release?
Your request to the BOP or motion to the Court should address potential modifications to your conditions of supervised release to create a smooth reentry into society. This means providing a release plan that addresses what you aim to do upon your release, who you will live with and where, your source of income, and any other factors that show you have a stable living arrangement upon release. In cases where the judge is concerned about safety to the community, the conditions of supervised release can include a curfew, location monitoring, or home detention.
Call our firm if you or a loved one needs help requesting early release.
Our attorneys have decades of experience representing individuals charged with federal crimes or who are serving sentences for federal crimes. We know what it takes to win in federal court, whether you’re fighting charges, appealing a conviction, or seeking a sentence reduction or early release from prison.
Call our firm now to speak to one of our experienced federal defense lawyers about the BOP’s Compassionate Release Program and if we can help you or your loved one request an early release.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “Eleventh Circuit Roundup” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.