Jeremy Gordon

Three Things to Notice: USSC Compassionate Release Data

The United States Sentencing Commission published new statistics on compassionate release. From that data we can see several key ideas.

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The United States Sentencing Commission has released data on the amounts of compassionate release sought and granted in the year 2020.

The report states that “[t]he data in this report reflects all compassionate release motions decided through December 31, 2020, and for which court documentation was received, coded, and edited at the Commission by May 27, 2021.” While most of the compassionate releases at that time dealt with COVID-19 cases, this report does not differentiate between the relief sought.  

From this data we can see three important takeaways:

Federal Courts granted 21% of the Compassionate Releases that were filed in the year 2020.

The report indicates that 12,138 compassionate release requests were filed in the year 2020. 2,549 (21.0%) were granted and 9,589 (79.0%) were denied by the court. The District of Oregon granted the highest percentage of compassionate release requests with 68.5% The Virgin Islands denied all 5 compassionate release requests that came before the court. Behind that was the Southern District of Georgia which denied 97.5 percent of compassionate release requests.

When a person was found guilty matters.

Cases where the the person was sentenced in fiscal year 1990 had the highest percentage of motions granted (80%). Sentences that were handed down in fiscal year 2011 and everything from fiscal year 2014-2020 were granted compassionate release less than 20% of the time. This happened on many of our cases: While a judge may have determined that a person had experienced extraordinary and compelling circumstances, several courts determined that a client had not served enough time in prison to fulfill the considerations of 3553(a).

The Department of Justice Cannot be considered to be a good-faith actor regarding compassionate release.

2,495 motions that were granted were filed by defendants. The director of the BOP filed 17 motions. The attorney for the government filed 75 motions for 2.9 percent.

This, combined with the Marshall Project’s deep dive into compassionate release cases granted by the BOP paint a stark picture:

The updated figures outlined in the agency’s response to Congress in April showed that BOP wardens actually endorsed slightly fewer compassionate release requests as the pandemic progressed. In the first three months, wardens approved 1.4% of release applications. The central office rejected most of those, with Director Michael Carvajal ultimately approving just 0.1%. By the end of April — more than a year into the pandemic, and after more than 200 prisoner deaths — wardens had approved 1.2% of applications, and Carvajal again accepted just 0.1%.

“In court, prosecutors were fighting release and saying that this person doesn’t have a condition that makes them vulnerable — and then they would die, and the BOP would issue a press release saying that the person had underlying conditions,” [clinical associate professor at the University of Iowa College of Law Alison] Guernsey said. “The two-faced position of the Department of Justice, which includes the BOP, is really quite shocking.”

This happened to us on multiple occasions.  We would talk to a person who would say “all I’m trying to do is have you write a letter to my warden.  The warden said that they would put it in, all that had to happen was that someone write a letter for me.”  As we have previously stated, the BOP has a multiple step process for granting compassionate release.  That process involves reaching out to the Warden, Medical staff, legal counsel and ultimately the Director of the Bureau of Prisons.  At any point on this path the process can be upended and compassionate release can be denied.  

The district court noted this in Maumau:

The United States points out in its opposition that Mr. Maumau’s request is unlike the vast majority of compassionate release requests because he is not suffering from any medical- or age-related physical limitations. But the fact that such cases are uncommon does not mean that Mr. Maumau’s request must be denied.

First, the lack of such cases is, at least arguably, part of what spurred Congress to pass the First Step Act. The Bureau of Prisons Director was first placed in charge of bringing compassionate release motions as part of the Sentencing Reform Act of 1984. See Pub. L. No. 98-473, 98 Stat. 1837 (Oct. 12, 1984). In the Senate Report that accompanied that Act—which both Mr. Maumau and the United States cite in their briefing—Congress indicated that sentence modifications would be appropriate in “cases of severe illness, cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence, and some cases in which the sentencing guidelines for the offense of which the defender was convicted have been later amended to provide a shorter term of imprisonment.” S. Rep. No. 98-225, at 55-56 (1984). Despite this intent, a 2013 Inspector General’s report by the Department of Justice found that “although the BOP’s regulations and Program Statement permit non-medical circumstances to be considered as a basis for compassionate release, the BOP routinely rejects such requests and did not approve a single nonmedical request during the 6-year period of our review.” U.S. DEP’T OF JUSTICE, The Federal Bureau of Prisons’ Compassionate Release Program, at ii, (Apr. 2013).

In other words, Congress indicated thirty-five years ago that it would be appropriate to provide compassionate releases when sentences are “unusually long” but the Bureau of Prisons consistently declined to seek relief in those situations. Congress responded by eliminating the Bureau of Prisons’ gatekeeping function over compassionate releases. Accordingly, the fact that the phrase “extraordinary and compelling reason” has not historically been interpreted to include exceedingly long sentences is an unpersuasive reason to exclude such an interpretation today.

United States v. Maumau, Case No. 2:08-cr-00758-TC-11, 9-11 (D. Utah Feb. 18, 2020).  

It is no wonder the the Department of Justice continues to fight the application of USSG 1B1.13 everywhere; the DOJ is eager to get back to denying compassionate releases and then having their prosecutors point to 1B1.13 and stating that COVID-19/Stacked 924(c)/Stacked 851 are not in the guidelines.

What lessons can be taken from this? The biggest lesson to be drawn from this is to make sure that you have your documentation and be prepared to file your motion after you reach out to the warden of the BOP.  Do not believe that the warden or case manager is on your side, they are not.  

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