The administrative remedy process has become newly relevant in the context of compassionate release cases related to COVID-19. If you are thinking about seeking compassionate release, especially release based on COVID-19 dangers, the administrative remedy process is vital to understand.
Places where you must use your administrative remedies
The most relevant place for the use of administrative remedies these days is with the 3582 motions for COVID-19 relief. Every court case that we have cited has explained to some extent whether the person has engaged in the administrative remedy process.
There are other places where administrative remedies must also be used. Several examples of this include:
-3582 motions for reduction in sentence for “stacked 924(c)” relief. See Ukrevich, Maumau, O’Bryan
-3582 motions for reduction in sentence to take care of aging relatives. See Bucci
-Certain 2241 motions for habeas corpus. An example of this would be a restitution payment under the Inmate Financial Responsibility program
-A law suit under the Prison Litigation Reform Act. See Ross vs. Blake
The Courts and Exceptions to Administrative Remedies
In McCarthy v. Madigan 503 U.S. 140 (1992), the Supreme Court discussed exceptions to seeking administrative remedies. The court noted that “First, requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion of a court action. Such prejudice may result, for example, from an unreasonable or indefinite timeframe for administrative action.” Id. At 147. “Second, an administrative remedy may be inadequate ‘because of some doubt as to whether the agency was empowered to grant effective relief.’” Id. “Third, an administrative remedy may be inadequate where the administrative body is shown to be biased or has otherwise predetermined the issue before it.” These exceptions were also discussed in Washington v. Barr, No. 18-859 (2d Cir. 2019)
In the COVID-19 landscape, the Third Circuit decided United States v. Raia, No. 20-1033 (3d Cir. 2020), indicating that they could not decide his motion in the first instance because the case was on appeal but at least implying that they would have denied it for failure to engage in the administrative remedy process or giving the BOP 30 days to consider Raia’s request. Further, the Sixth Circuit dismissed a petition for failure to fully exhaust his administrative rights or waiting 30 days after the warden’s receipt of the inmate’s request. See United States vs. Alam, 20-1298.
I have not personally read a court case where one of the three exceptions from McCarthy were used in order to grant relief on a reduction in sentence, especially in the COVID-19 landscape. But I have had cases where the courts have considered cases ripe for filing based on Raia, Alam and the text of 18 USC 3582. Based on all of these court cases I believe that this administrative remedy process is important.
The Administrative Remedy Process is available at Program Statement 1330.18. Your loved ones can view it by clicking on this link. Don’t forget that in the compassionate release framework that either you, an attorney or a loved one can reach out to the BOP under Program Statement 5050.50. This guide will assume that you have done that and received a negative response.
INFORMAL RESOLUTION under §542.13
If you are seeking compassionate release, your first step will be to write to your warden submitting this request. While some wardens may occasionally choose to grant these requests at this point in the process, the chances are very slim. The warden of your institution has 30 days after you submit your request to either grant or deny your request. If your warden does not reply within 30 days, the administrative remedy process can be overlooked. Assuming, however, that your warden does deny your request, your next step is to start the administrative remedy process.
The administrative remedy process is a series of forms comprised of the BP-9, the BP-10, and the BP-11. The BP-9 appeals the warden’s decision within your institution and is considered to be both an informal resolution and the initial filing. See INITIAL FILING §542.14 on page 4. The BP-10 appeals the decision at the regional office. The BP-11 appeals the decision at the central office INITIAL FILING §542.14 section (c). While it is highly unlikely that these forms will result in a release, it is essential to file all three because they deal with three separate offices. You must address all three offices in order for the administrative remedy process to be considered “exhausted” with the courts.
The Incarcerated person must fill the forms out
The BP-9, BP-10, and BP-11 must be filled out by you. Family, friends, lawyers, and other inmates are allowed to help you with them, but the inmate must file themselves and the inmate’s signature must be on the form. Ultimately, there is nothing complicated about the content of these forms; they are meant to be brief and simple. More important than their content is their completion.
These forms can also be rejected and sent back to you to start over if you raise new points in the forms that you didn’t raise in your initial complaint. “I am appealing the warden’s decision to deny my compassionate release based on my health conditions and the pandemic of COVID-19,” is enough. In the same vein, the forms can be sent back to you if you try to address multiple issues on one form, so stick to your compassionate release argument. See INITIAL FILING §542.14 section C, paragraph 2.
Time Constraints and these forms
There are also time constraints on these forms. The BP-9 must be filed within 20 days after the Warden denies your initial request for compassionate release. See INITIAL FILING §542.14 section a. The BP-10 must be filed within 30 days after the institution denies your BP-9. The BP-11 must be filed within 30 days after the regional office denies your BP-10. See APPEALS § 542.15 on page 6. While there are situations in which delays are acceptable, they are difficult to recognize. If you are physically unable to file, you have lack of access to necessary documents, or your request for any supporting documents are delayed, the BOP can grant you an extension, however, all of these claims must be corroborated by a staff member. See INITIAL FILING §542.14 section b.
The BOP faces similar time constraints. Your institution must respond to your BP-9 within 20 days, the regional office must respond to your BP-10 within 30 days, and the central office must respond to your BP-11 within 40 days. See RESPONSE TIME §542.18. The BOP can file for extensions to respond to your claims, but they should notify you if this is the case. Your institution is allowed to request a 20-day extension, the regional office a 30-day extension, and the central office a 20-day extension.
Also important to note is that the 20 or 30 day “clock” begins when the warden, regional office, or central office sign your denial, not when you receive that denial. This shortens the time you have to get these documents ready. “If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.” See RESPONSE TIME §542.18 on page 9.
Our hope is that, with a better understanding of the administrative remedy process, compassionate release cases can be dismissed due to a lack of exhaustion less frequently and that you can get your motion out of the hands of the BOP and into the court with more expediency.
As I have previously stated, treat the Administrative remedies as hot potatoes. The BP 9, 10 and 11 forms are things that you will need to fill out before you can get into court. They need to be filled out and sent in the day after the last one is returned. Period. So if you get your denial on a Monday, then on Tuesday your BP9 needs to be sent out. You should assume that they all are going to get denied regardless of how well-thought-out and reasoned they are. So get the next one out the very next day.
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