To say I’ve been remiss in posting would be an understatement. Work demands, storm interruptions, etc. notwithstanding, need to do better. But, I’m back and happy to be able to give attention to “The Answer is No: Too Little Compassionate Release in US Federal Prisons,” a new, important report from Human Rights Watch and Families Against Mandatory Minimums (FAMM) that addresses the BOP’s atrocious performance in serving as gatekeeper for “compassionate release” motions under 18 U.S.C. § 3582(c)(1)(A)(i)(and Guideline Section 1B1.13). Explaining the process and the problem at-issue, the report provides:
Congress authorized what is commonly called “compassionate release” because it recognized the importance of ensuring that justice could be tempered by mercy. A prison sentence that was just when imposed could—because of changed circumstances—become cruel as well as senseless if not altered. The US criminal justice system, even though it prizes the consistency and finality of sentences, makes room for judges to take a second look to assess the ongoing justice of a sentence.
Prisoners cannot seek a sentence reduction for extraordinary and compelling circumstances directly from the courts. By law, only the Federal Bureau of Prisons (BOP, the Bureau) has the authority to file a motion with a court that requests judicial consideration of early release. Although we do not know how many prisoners have asked the BOP to make motions on their behalf—because the BOP does not keep such records—we do know the BOP rarely does so. The federal prison system houses over 218,000 prisoners, yet in 2011, the BOP filed only 30 motions for early release, and between January 1 and November 15, 2012, it filed 37. Since 1992, the annual average number of prisoners who received compassionate release has been less than two dozen. Compassionate release is conspicuous for its absence.
The paucity of BOP motions for sentence reduction for extraordinary and compelling reasons is not happenstance. The BOP insists that it has essentially unbounded discretion with regard to compassionate release, and it has chosen to exercise that discretion to reject compassionate release in all but a few cases.[…]
When Congress placed compassionate release decisions in the hands of the courts, it honored the basic human rights and due process requirement that criminal justice decisions on the initial and ongoing deprivation of liberty should be made by independent and impartial entities. The BOP cannot accurately be described as either. It is a component of the DOJ, directed and supervised by the deputy attorney general. In recent years, the Department has taken policy positions averse to any but the most restrictive interpretation of compassionate release, favoring finality of sentences over sentence reductions for extraordinary and compelling reasons. Even at the level of individual cases, the DOJ exercises influence: when considering inmate requests, the BOP consults the prosecutor— and in some cases the deputy attorney general—before making a final decision.
The BOP’s compassionate release process also suffers from lack of basic procedures to ensure fair and reasoned decision-making. For example, there is no hearing in which the prisoner or his counsel—if he has one—can present his case for compassionate release, rebut arguments against it, or correct any factual mistakes BOP officials may have made. The BOP does not tell the prisoner what information or concerns it has relied on from DOJ officials or other stakeholders, which denies the prisoner a meaningful opportunity to respond to negative assessments or challenge newly raised arguments. While the prisoner can administratively appeal a warden’s denial, wardens almost never relent. Subsequent appeals up the chain to the Bureau headquarters (referred to as the BOP Central Office) are also doomed; in 2011, for example, the BOP Central Office did not grant any administrative appeals in compassionate release cases.
Not surprisingly, the report, which offers both compelling, tragic examples of the Bureau’s recalcitrance when it comes to respecting and working to ensure fundamental human dignity and a series of ameliorative proposals, generated media attention, including from NPR(click for link to audio) and the Associated Press. It is definitely worth reading.