Recent changes to federal law have made “compassionate release” motions one of the most effective ways to seek relief from prison. The COVID-19 pandemic has made this portion of the law more important than ever (here, the terms “Compassionate Release” and 3582, short for 18 USC 3582(c)(1), will be used interchangeably).
Searching for Compassion: Compassionate Release Before the FIRST STEP Act of 2018
Prior to the FIRST STEP Act of 2018, there were extremely few compassionate release motions ever filed for federal inmates. This is not because federal inmates were healthy or not dying. The reason there were virtually zero compassionate release motions filed prior to 2018 was more basic.
BOP Refuses to Grant Compassionate Release
For three decades, only the Federal Bureau of Prisons (“BOP”) was allowed to file motions to reduce sentence for compassionate release. This restriction was explicitly set out by Congress at 18 U.S.C. Section 3582(c) which is the part of the federal code governing compassionate release. The BOP’s implementation of the compassionate release law was an unmitigated disaster.
The BOP’s failure to file compassionate release motions for sick or dying inmates was repeatedly well-documented by the Department of Justice’s Office of the Inspector General. For example, in 2013 the DOJ Inspector General issued a scathing report detailing the BOP’s failure to implement compassionate release. Department of Justice, Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release Program, at 11 (April 2013) (“The BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered.”).
Following years of hearings, Congress recognized that the BOP would never grant compassionate release to inmates on a meaningful basis. This makes some intuitive sense; the jailer holding the keys to the jail is probably not institutionally inclined to unlock the cell doors.
FIRST STEP Act Allows Inmates To File Motions
On December 21, 2018, the BOP’s unlimited authority to decide who could even ask a judge for compassionate release was destroyed with the signing of the FIRST STEP Act. Congress amended 18 U.S.C. Section 3582(c)(1) to permit an inmate to file his own request for relief under the compassionate release statute.
This gave sentencing judges the jurisdiction to consider a motion from the defense instead of just the BOP for the first time. The FIRST STEP Act only requires that an inmate first make a request to the warden of the inmate’s facility, wait 30 days, and then file the motion for the court to hear a request for compassionate release. First Step Act of 2018, Section 603(b), Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018).
As of November 2020, the federal courts have compassionately released an estimated 1,700 persons so far. In 2019, there were 145 grants of compassionate release. The FIRST STEP Act changes to compassionate release appear to be working.
Grounds that the Court Uses to Decide Compassionate Release Motions Under 18 USC 3582(c)(1)
There was not very much caselaw to tell courts how to evaluate compassionate release motions before 2018 because the BOP rarely filed them. Once the FIRST STEP Act gave inmates the power to bring their own motions for compassionate release courts needed to decide how to evaluate the motions.
Congress did not give any new direction with the passage of the FIRST STEP Act. Instead, Congress told sentencing courts that they could grant a motion to reduce sentence brought by defendants upon a showing of “extraordinary and compelling reasons,” for the reduction. 18 U.S.C. Section 3582(c)(1).
Today, there are three substantive requirements for a court to grant compassionate release to a defendant.
First, the court must either make findings that the “extraordinary and compelling reasons” merit a sentence reduction for compassionate release. Second, the court must find that the sentence reduction is consistent with all “applicable” Sentencing Commission policy statements. Third, the court must weigh the applicable sentencing factors under 18 U.S.C. Section 3553(a) and determine they support the compassionate release sentence reduction. See United States v. Ruffin, 978 F.3d 1000 (6th Cir. Oct. 26, 2020).
Extraordinary and Compelling Circumstances in 3582 Motions
The Court must make the decision that “extraordinary and compelling circumstances” exist in order to consider a compassionate release motion. Decades ago, Congress directed the Sentencing Commission to develop policies to help determine what “extraordinary and compelling reasons” warrant compassionate release. See 28 U.S.C. Section 994(t).
The Sentencing Commission policy statements can be found at U.S.S.G. Section 1B1.13. The Sentencing Commission has not updated its guidance on compassionate release motions since before the passage of the FIRST STEP Act. They have not acted largely because they do not have enough voting members to enact any new guidelines today. Because of the lack of guidance, we will discuss the Sentencing Commission’s statements, the court’s “catch-all,” and the BOP’s opportunity to grant release.
Terminally Ill Inmates:
The Sentencing Commission has indicated that a court can grant a compassionate release based on medical conditions if the incarcerated person is suffering from a terminal illness. A terminal illness is defined as a “serious illness with an end of life expectancy.” The Sentencing Commission does not require a “probability of death within a certain time period.” The Sentencing Commission gives examples of “metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.”
Seriously Ill Inmates:
The Sentencing Commission has determined that a person can seek a reduction if they are suffering from a serious physical or medical condition, serious functional or cognitive impairment or experience deteriorating physical or mental health because of the aging process that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which recovery is unlikely.
The Sentencing Commission has deemed that the death or incapacitation of the caregiver of the defendant’s minor child or children can be an extraordinary and compelling circumstance. In addition, the courts can deem the incapacitation of a spouse or registered partner when the incarcerated person would be the only available caregiver for the spouse or registered partner.
The Catch-all: Any other “Extraordinary and Compelling Circumstances”
Several courts have determined that in the absence of a further explanation of what “extraordinary and compelling circumstances” are, district courts are free to make that determination themselves. So far, this includes courts in Maryland, North Carolina, South Carolina, Virginia, West Virginia, Kentucky, Michigan, Ohio, Tennessee, Illinois, Indiana, Wisconsin, Connecticut, New York, and Vermont. Many other district courts have made this determination as well. In plain English, courts have ruled that failure of the commission to give new guidance after congress has voted means that the courts are allowed to make this determination. Other courts have ruled that the guidelines are not applicable to these motions because the Bureau of Prisons is not the party filing the motions. We call this the statutory “catch-all” because the only place that this is written in this way is in the statute.
This means, at least in those circuits, that almost anything can be an “extraordinary and compelling circumstance,” including the incapacitation of parents, statutory enhancements that are no longer applicable, increased punishments that are no longer applicable and even court cases that substantially affect incarcerated persons.
COVID-19 as an extraordinary and compelling circumstance.
As many of you know by now, COVID-19 is a disease that wreaks havoc on the body. While much is unknown about the disease, we do know that the virus attacks many different areas of the body including the lungs, the blood, the kidneys, the heart and the brain. The EPA indicates that the primary method of infection is contact with infected people, contaminated surfaces, and the possible movement of airborne particles in indoor environments.
Try as they might, the Federal Prison System has been woefully unprepared and inadequate to handle the threat of COVID-19. The cramped spaces and close configuration of inmate living quarters make social distancing all but impossible. This creates rising cases and increased deaths. The problem is exacerbated by employees of the Bureau of Prisons failing to follow their own protocols set out for inmate and staff safety.
Recognizing the need for the incarcerated persons to be safe from COVID-19 congress passed the CARES Act. Among other things, the CARES Act gave the Bureau of Prisons the ability to grant home confinement time to inmates regardless of how long they have served inside the walls of the prison. This, however, became problematic as the federal government sought to frustrate the process, favored certain inmates over others, failed to justify their actions appropriately and issued conflicting guidance to prisons. And while reports are circulating about the issuance of a vaccine to the federal prisons, the conflicting information about who is receiving it and when more will be available is causing confusion.
Against the backdrop, many individuals filed compassionate release motions to the court, claiming that their susceptibility to COVID-19 in the prison when paired with their risk factors for the disease resulted in extraordinary and compelling circumstances. Courts have been finding this combination to meet the criteria set by the law. Our office has been granted compassionate release relief for susceptible individuals.
It is important to note that even for these “COVID relief” cases, extraordinary and compelling circumstances is only one of the three things that must be proven. The court must still find that the person is not a danger to the community or any other person, as discussed below. These things must be sufficiently briefed and argued to have the best chance at release.
Over 70 years old and subject to “mandatory life” provision.
A person can meet the first criteria for a compassionate release if they are at least 70 years old and has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c), the mandatory life provision for violent felonies.
Reduction in Sentence Sought by the Bureau of Prisons.
Although rare, it must be discussed that the Bureau of Prisons has the ability to grant a reduction in sentence on its own. This is provided for in the Bureau of Prisons’ program statements (similar to a bylaw). This is, however very rare and can take time, sometimes up to a year. This is because the Bureau of Prisons has a process to rule on compassionate release requests that starts with the warden, is evaluated by the associate medical director and the medical of the Bureau of Prisons, then the legal counsel and then the director for the Bureau. From there, it goes to the prosecutor and then to the court. Our office has been granted compassionate release relief in this way, pre-FIRST STEP Act, but only once. The process took a year.
The Defendant is Not a Danger to Others:
In order for the Court to grant a reduction in sentence under 18 U.S.C. 3582(c)(1), the court must also find that the incarcerated person is not a danger to the safety of the community or to any other person. While not referenced specifically in the text of 3582, the statute indicates that “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” United States Sentencing Guideline § 1B1.13 is the applicable portion of the guidelines that state this.
In making this determination the court evaluates the factors present in 18 U.S.C. 3142(g), part of the Bail Reform Act of 1984. Factors there include:
- The nature and circumstances of the offense charged, including whether the offense is a crime of violence, a terrorism crime or involves a minor victim or drugs, a firearm or an explosive device;
- The weight of the evidence against a person,
- The history and characteristics of the person, including
- The person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
- whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law;
- The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
Consideration of the 3553(a) Factors
The Compassionate Release Statute also mentions that the court must consider the factors in 18 USC 3553(a). These are the same factors that are considered by a court in sentencing a person. These include:
- The nature and circumstances of the offense and the history and characteristics of the defendant;
- The need for the sentence imposed—
- to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- to afford adequate deterrence to criminal conduct;
- to protect the public from further crimes of the defendant; and
- to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
- The kinds of sentences available;
- The kinds of sentence and the sentencing range established for—
- [the guideline range and criminal history category in the case]
- Any pertinent policy statement
- The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- The need to provide restitution to any victims of the offense.
The easiest way to think of this is “if this person were back in front of the judge, would the judge reduce their sentence?” For a COVID compassionate release the reduction would be down to zero days left but for other reductions in sentence the sought reduction would be less. So for example, if you were seek ing reduction because of “Stacked 924(c)” counts, you would be asking the court for a reduction of 20 years or so (per count).
Exhaustion of remedies in 18 USC 3582 motions
In order to seek release from prison under 18 U.S.C. 3582, a claimant must exhaust their remedies. The Text of 18 U.S.C. 3582 indicates that a person must reach out to the Bureau of Prisons and then they can file 30 days after. The text of the Bureau of Prisons’ program statements indicate that either an incarcerated person, their loved one or their attorney can seek release. by writing to the Bureau of Prisons. In addition, this request can be emailed or mailed. This process applies to all motions for reduction in sentence under this provision, including things like “stacked 924(c) motions” and COVID-19 relief motions.
The statute also indicates that a person can file after exhausting all their administrative remedies. The full process however, can take several months. We have been informed of frustration of this process by BOP officials.
What Evidence would be helpful in my compassionate release motion?
While there is no silver bullet for these motions, our review of the case law indicates that the following things are important in these motions.
A Safety Plan.
Unlike traditional compassionate release motions, a motion relating to COVID-19 concerns must address public health in addition to personal health. In other words, how will you ensure that a release from prison does increase you or anyone else’s chances of contracting COVID-19? One way to address this is by providing an affidavit by a loved one outlining how they can keep you safe: how they are able to pick you up from prison if you are released: do they have a car? How far away are they? The motion should also include an affidavit by a loved one with whom you will be staying after release, ensuring that you have a place to stay that puts some social distance between you and others in the house and that they have access to basic PPE (masks, gloves, soap, etc.,) that you will be able to use. Equally important is to include a name and phone number for the loved ones providing affidavits so that their claims are verifiable. We have observed cases where the courts have scheduled either video calls or evidentiary hearings to flesh out claims that others will be able to take care of the incarcerated person.
A Release Plan
While a release plan is essential in any compassionate release motion, it is essential for any COVID-related motions. The release plan is similar to the safety plan in that you must outline where you will be staying what you intend to do, however, it differs in that it directly addresses the second essential assertion required for a compassionate release: proof that you would not be a danger to others if released. In addition to information on what you plan to do, this section is strengthened exponentially by support letters from friends and family that outline how your loved ones intend to support you after release. While letters of support frequently include testimony to your rehabilitation or strength of character, it is equally important that these letters give concrete examples of ways in which your community will help you avoid recidivism and continue rehabilitation. Can they offer you a place to stay? A job? Moral support? All of this helps to reinforce your motion by demonstrating community “safeguards” that will help you keep on the right path after release. As always, full names and contact information for people writing these letters for you should be included.
Perhaps the most related to COVID-19 is the entry of a personal statement through an affidavit that you personally write. Many courts have denied compassionate release motions because the Bureau of Prisons have provided evidence that they have a plan to keep inmates safe and healthy, therefore release is not warranted. Information about the reality of your institution’s conditions and handling of the virus is essential to counteract this, as many inmates have indicated to us that the BOP’s plans to keep them safe are not realistically implemented on the ground. For example: while the BOP may report readily available testing, inmates from some institutions have reported that they are not quarantined until a positive test has been confirmed. All of this should be included in your personal statement. Do you have adequate access to soap? Masks? How is testing being handled in your institution? What about physical distancing? What is happening between when a person is tested and when results come back? Are they being placed back in with the population or is something else happening? A declaration is important as to these things.
To prove that your post-incarceration conduct involves evidence of rehabilitation, numerous documents from the BOP should be included: Your ISDS Report, IRP, Team Sheet, Individual Reentry Plan, certificates of any courses or leadership positions, and your PATTERN score. These things help to demonstrate the third essential assertion that must be proven in a compassionate release case.
Perhaps most pertinent to a COVID-19 compassionate release case is your medical records from both inside and outside the prison. The court will use these to verify all claims within the motion regarding your vulnerability to COVID-19, single handedly providing evidence for extraordinary and compelling circumstances – the first essential assertion for compassionate release. These records should all be obtained before you file with the court. In most cases, an inmate can request their BOP medical records themselves. This is the quickest route. If you must request these records through your lawyer, they can take several weeks as an ID Verification and a FOIA request must be completed first. If, for some reason, you have trouble obtaining your records from the BOP, this must too be documented: the names, dates, and positions of those who denied you access to your records should be noted for your court filings.
These are all things that you can prepare while waiting to file with the court. The process for requesting compassionate release requires you to first write to the warden of your institution and wait 30 days for a response before filing with the court. Attaining this information and readying it for filing can expedite your process whenever you can file with the court.