Jeremy Gordon

Compassionate Release

Inmates facing extraordinary circumstances can now apply for compassionate release under 18 U.S.C. § 3582.

postconviction relief, compassionate release, 2255 motions, case review
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    What is Compassionate Release?

    Compassionate Release is a function under 18 U.S.C. § 3582 meant to provide relief to struggling inmates in federal prison. 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 a motion for compassionate release 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 instead of the traditional process of sending a request in and waiting almost a year for the motion to go through the warden, medical directors, general counsel and finally the director o the Bureau of Prisons.

    Who Qualifies for Compassionate Release?

    To qualify for Compassionate Release, an inmate must meet three primary conditions:

    1. Firstly, “Extraordinary and compelling reasons” for release must exist.

    2. Secondly, inmates must not be a danger to others.

    3. Thirdly, the Court must consider the factors under 18 U.S.C. § 3553(a).

    4. Fourthly, inmates must have met the exhaustion requirement.

    Extraordinary and Compelling Reasons 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”.

    1. 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.

    2. Age. This includes inmates over 65 with deteriorating health and who’ve served over 75% or 10 years of their sentence.

    3. 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.

    4. Other Reasons as determined by the Bureau of Prisons. 

    5. Other Extraordinary and Compelling Reasons.   Many circuits have determined that 1B1.13 is NOT applicable to compassionate release motions that are filed by defendants.  This means that district courts have much more discretion than ever before to decide what types of circumstances are extraordinary and compelling to merit a sentence reduction.

    Special Note:  Stacked 851’s and Stacked 924(c) Enhancements as extraordinary and compelling circumstances

    Several inmates have enhanced punishments because of the presence of one or more 924(c) charges or 851 prior convictions.  The FIRST STEP Act lessened those enhanced penalties significantly.  

    This however has led to a situation where some persons are in prison serving longer sentences solely because of when they were sentenced (as in a person being sentenced before December 2018 may be serving far more time than a person sentenced after December 2018 because of enhancements that are now no longer applicable.  Several courts have utilized Compassionate Release as a method to cure the inequity.  This, however, does not apply to all districts and you should consult an attorney before filing.  

    3553(a) Sentencing Factors and Compassionate Release

    The Compassionate Release Statute also indicates 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.

    Is the Compassionate Release Claimant a 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.

    • Whether drugs or guns were involved in the alleged offense.  

    As part of this section, it is important to prove and expound upon inmates rehabilitative efforts.

    Exhaustion of Administrative Remedies

    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 Susceptibility as an Extraordinary and Compelling Circumstance

    Vulnerability to COVID-19, especially due to pre-existing and underlying medical conditions, can be considered “extraordinary and compelling” under the “other reasons” category.

    During the pandemic the law office of Jeremy Gordon has sought and received compassionate release motions for individuals who were at particular risk for increased illness due to COVID-19. Now, as the vaccine is further proliferated amongst the population, we encourage all to get vaccinated as they feel comfortable.  The Bureau of Prisons (which is a function fo the Department of Justice) notes and uses refusals of the vaccine as evidence to counter the assertion of extraordinary and compelling circumstances.  

    We believe that mutations of the virus that can evade vaccination are possible and will continue to monitor the pandemic and counsel persons about the viability of compassionate release motions.  

    Important Evidence for a Compassionate Release 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.

    Medical Records

    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.

    BOP 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.

    Release Plan

    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.

    Strict Conditions of Supervised Release as an Argument in a Compassionate Release Case

    Our research has indicated cases where individuals sought and received compassionate release and were assigned strict terms and conditions of supervised release as part of their reduction in sentence.  This could even include home confinement for a period of time or adding an additional period  of supervised release equal to the remaining amount of time left inside the walls of the prison.
    EX:  An inmate has been sentenced to 10 years in prison and five years of supervised release.  We seek compassionate release after 7 years (and as such, 3 years left on their sentence).  The court grants said compassionate release but adds three years (the same three years that he would have spent inside before being granted release) to his supervised release term.  

    Of course we will discuss your options with you but we believe that this might lead to more consideration of your compassionate release case.  

    If you believe you or a loved one may be eligible for compassionate release, then reach out to our office today. 

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