Inmates facing extraordinary circumstances can now apply for compassionate release under 18 U.S.C. § 3582.
What is Compassionate Release?
Compassionate Release is a function under 18 U.S.C. § 3582 meant to provide relief to struggling inmates. Before the FIRST STEP Act of 2018, it was relatively rare because only the Bureau of Prisons could bring forth Compassionate Release petitions on behalf of inmates. Since the BOP generally has little interest in releasing inmates, very few individuals qualified.
The FIRST STEP Act of 2018 allows inmates to initiate Compassionate Release petitions on their own behalf. Additionally, inmates can move to federal court to ask for Compassionate Release if they first file a request with the Warden of their institution and wait 30 days for a response.
Who Qualifies for Compassionate Release?
To qualify for Compassionate Release, an inmate must meet three primary conditions:
Firstly, “Extraordinary and compelling reasons” for release must exist.
Secondly, inmates must not be a danger to others.
Thirdly, the Court must consider the factors under 18 U.S.C. § 3553(a).
Fourthly, inmates must have met the exhaustion requirement.
Circumstances for Compassionate Release
Although “extraordinary and compelling reasons” traditionally referred to terminal illness, the Sentencing Commission’s policy statement (Section 1B1.13) gives broader guidance on what qualifies. Therefore, the policy statement outlines four categories of “extraordinary and compelling reasons”.
Serious Medical Condition. This includes inmates with terminal illness, but also covers those with serious health problems that can’t be adequately managed within the prison.
Age. This includes inmates over 65 with deteriorating health and who’ve served over 75% or 10 years of their sentence.
Family Circumstances. This applies if the primary caregiver for an inmate’s children or spouse becomes incapacitated and no other caregivers are available. This can also include elderly parents who require a caregiver.
Other Reasons. This covers all other circumstance, such as inmates with a particular vulnerability to COVID-19 or those with excessively long sentences that resulted from laws that have since changed non-retroactively.
Factors Under § 3553(a)
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. Some of them are similar to the factors under 18 U.S.C. 3142(g). Ultimately, these factors consider whether a person would be sentenced the same way today as they were at the time. They include:
Nature and circumstances of the offense and the history and characteristics of the defendant;
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;
afford adequate deterrence to criminal conduct;
protect the public from further crimes of the defendant; and
provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
Kinds of sentences available;
Sentencing range established for—
[the guideline range and criminal history category in the case]
Any pertinent policy statement
Need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
Provision of restitution to any victims of the offense.
Danger to Others
To determine whether an inmate might pose a danger to an individual or community upon release, the court generally looks at the factors in 18 U.S.C. 3142(g), part of the Bail Reform Act of 1984. Factors there include:
Nature and circumstances of the initial offense.
Weight of the evidence against a person.
History and characteristics of the person.
Nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
As part of this section, it is important to prove and expound upon inmates rehabilitative efforts.
The exhaustion requirement basically requires that an inmate has reached out to the Bureau of Prisons to request Compassionate Release before moving to federal court.
To fulfill this requirement, an inmate should firstly write to the Warden of their institution outlining the reasons they feel Compassionate Release should apply them. If the warden denies this request or if 30 days pass, an inmate is free to file a motion with federal court.
We also recommend that inmates engage in the “administrative remedy process” as part of this section after they receive a denial from their Warden. This includes a BP-9, BP-10, and BP-11. Although not strictly required, it is further evidence that an inmate has exhausted their remedies.
COVID-19 Compassionate Release Motions
Vulnerability to COVID-19, especially due to pre-existing and underlying medical conditions, can be considered “extraordinary and compelling” under the “other reasons” category.
Helpful Elements of a Motion
Although 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 release plan outlines what you would do if released. Where will you live? How will you support yourself? What will you do? It should also include support letters from your loved ones attesting to your plan and discussing how they will support you after release.
While letters of support frequently include testimony to your rehabilitation or strength of character, it is also 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 and demonstrates community “safeguards” that will help you keep on the right path after release. Full names and contact information for people writing these letters for you should be included.
If your request has anything to do with your medical condition, then you must include your medical records.
Usually, these records should all be obtained before you file with the court. In most cases, an inmate can request their BOP medical records themselves. If you must request these records through your lawyer, then the records can take several weeks because you and your attorney must complete an ID Verification and a FOIA request first.
If, for some reason, you have trouble obtaining your records from the BOP, then this should be documented as well. You should note the names, dates, and positions of those who denied you access to your records.
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. Importantly, these things help to demonstrate the third essential assertion that must be proven in a compassionate release case: rehabilitation.
COVID-Specific Compassionate Release
In a COVID-19-specific motion, you should include a personal statement. 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, so release is not warranted. Therefore, 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.
Unlike traditional compassionate release motions, a motion relating to COVID-19 concerns must address public health. In other words, how will you ensure that a release from prison doesn’t 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. Full names and contact information for your loved ones should be included.
If you believe you or a loved one may be eligible for compassionate release, then reach out to our office today.