What is the Compassionate Release Program at the Bureau of Prisons?
The “Compassionate Release Program” at the Bureau of Prisons is a program that allows certain inmates to be released from federal prison early, or have their sentences cut short, if there are “extraordinary and compelling reasons” warranting a sentence reduction. These reasons can include an inmate’s serious or terminal medical condition, the incapacitation of an inmate’s spouse or child, or other pressing circumstances.
Before the First Step Act of 2018, early release through the BOP’s 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 filed early release motions for their inmates. Between 2006 and 2011, for example, the BOP reports that an average of only 24 inmates were granted compassionate release each year.
The First Step Act now allows federal prison inmates and people with loved ones serving long prison sentences to seek a sentence reduction or an early release from prison by filing their own motion directly with the court under 18 U.S.C. § 3582(c)(1)(A), even if the BOP refused their request.
Under the new law, not only do inmates have an individual right to request early release from prison directly from the court, but courts now have broader discretion in determining whether to grant an inmate’s request for a sentence reduction.
Our firm has already helped several federal inmates go home under this program. Read about our latest successful compassionate release petition.
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 more than 30 days have passed since your 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.
It’s important to know exactly how to request early release from the BOP and what it means to exhaust all available administrative remedies because, otherwise, you can’t file a motion for early release with the court. Inmates should submit their requests on BP-9 and BP-10 forms to their unit managers or counselors and specify their reasons for requesting release. When possible, it is important for inmates to document their request by making copies. Alternatively, an attorney for the inmate can submit a certified letter to the warden requesting release.
“Exhausting all administrative remedies,” on the other hand, 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.” Most courts have held that inmates do not have to exhaust their administrative remedies if more than 30 days have passed since they submit their request, even if the BOP denied their request within 30 days.
However, inmates who were convicted in a jurisdiction where courts require exhaustion if the BOP responds within 30 days must follow this process until they receive 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 an inmate’s final appeal, the inmate can file a motion with the court. Whether you are filing your motion after 30 days or after exhausting your administrative remedies, 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 and the U.S. Sentencing Commission have released their own criteria for defining “Extraordinary and Compelling Reasons” under BOP Program Statement 5050.50 and U.S.S.G. § 1B1.13, respectively. These include:
- 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 that makes them unable to care for themselves. 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.
- Catch-all – Any reason or combination of reasons that the BOP director determines are extraordinary and compelling.
As discussed above, however, the BOP is no longer the only party that can file a motion for compassionate release or sentence reduction with the court, and inmates can now file their own motions without the BOP’s approval. As a result, a majority of courts across the country have held that courts can rely on their own independent discretion to determine what circumstances constitute “extraordinary and compelling reasons” warranting an inmate’s sentence reduction.
This means that many inmates can now file a motion for compassionate release or sentence reductions based on reasons not listed under U.S.S.G. § 1B1.13, such as the need to be a caregiver for a family member besides a spouse or child or the excessiveness of their sentence in light of recent reforms that would have shortened their time or repealed the mandatory minimum penalties they were subjected to when they were convicted. This is especially significant since the First Step Act shortened the mandatory minimum penalties for many offenses without making those changes “retroactive.” Through compassionate release, inmates can still seek a reduction based on those reforms.
While the law is still changing and we expect to add more states to this list, inmates in the following states can file motions for compassionate release or sentence reductions based on reasons not listed under U.S.S.G. § 1B1.13: New York, Connecticut, Vermont, West Virginia, Virginia, Maryland, the District of Columbia, North Carolina, South Carolina, Tennessee, Kentucky, Ohio, Michigan, Indiana, Illinois, and Wisconsin.
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 fight hard for our clients, and our hard work has helped several inmates get released from prison early during the COVID-19 pandemic. We have won motions for compassionate release across the country, from Georgia to California, based on the risks inmates face of contracting a severe illness from COVID-19. Each of these cases presented a unique set of facts depending on certain factors, including the client’s medical conditions, their criminal history, and the conditions where they are incarcerated.
One client we helped get an early release from prison was an elderly, non-violent drug offender who had been convicted of using his medical license to write illegitimate prescriptions. He was released about a year and a half into a 7-year sentence. We have also won motions for compassionate release for young inmates convicted of firearm and drug trafficking who have heart problems, obesity, high blood pressure, and other medical conditions that put them at risk of severe illness from COVID-19 while incarcerated. We have gotten inmates out of prison even after they tested positive for COVID-19.
Some of these inmates had only a little time left to serve, some had several years left. In one case, we were able to get one client’s 64-year sentence for three armed bank robberies reduced to time served after he was in prison for 15 years. The judge granted our motion after we argued that, in addition to his medical conditions, his 64-year sentence was excessive and a product of harsh sentencing laws that have been repealed since his sentencing. While every case is different, our experienced compassionate release attorneys are ready to help you or your loved one fight for an 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. Maybe we can help you or your loved one get out of prison early.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He 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.