Compassionate release

What the FRIST STEP Act Means For Federal Prisoners

Published on: June 25, 2019 | by Todd A. Bussert

Of possible interest to federal prisoners, those subject to a term of federal imprisonment and their respective attorneys and loved ones is this article I recently wrote for NACDL’s The Champion regarding the FIRST STEP Act. Among the provisions of the new law that the article addresses are the incentivized rehabilitative programming-based earned credit system, changes to motions for reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) (also known as “compassionate release”) that increase prisoners’ access to the courts, and an initiative by which “elderly” and “terminally ill” prisoners can secure earlier transfers to home confinement.

Devaluing Human Dignity

Published on: January 21, 2016 | by Todd A. Bussert

I have written before about the Bureau of Prisons’ atrocious performance serving as gatekeeper for “compassionate release” motions under 18 U.S.C. § 3582(c)(1) (and Guideline Section 1B1.13). Sadly, matters have improved little. Over at the Cato Institute, Nat Hentoff shines a light on the Bureau’s continued resistance to affording judges the opportunity to reconsider sentences previously imposed, often decades prior.

Hentoff details the dogged, pro bono efforts of Attorney Ellen Lake and “the case of 94-year-old Carlos Tapia-Ponce, one of the oldest inmates in the Federal Bureau of Prisons (BOP), who is serving a life sentence for managing a warehouse that was the site of what to this day remains the largest cocaine seizure in history.” Having had no success with an application for executive clemency filed as part of the Department of Justice’s clemency initiative, Attorney Lake began pursuing Mr. Tapia-Ponce’s compassionate release. And, when the Director refused to act on (approve or deny) the most recent recommendation that a motion be filed, Attorney Lake sought relief directly from the sentencing court.

Tapia-Ponce had been recommended for a compassionate release/reduction in sentence (CR/RIS) on two separate occasions by two different BOP wardens. The first request was filed in 2013 and denied the following year. The second petition, filed in August 2015, was still pending when Tapia-Ponce’s health deteriorated to the point where he was transferred to a BOP medical center in North Carolina.

Lake’s repeated telephone calls to the BOP’S General Counsel’s office were ignored. Concerned with her client’s failing health, Lake filed a motion asking the U.S. District Court to compel the BOP to rule on Tapia-Ponce’s pending CR/RIS petition.

A day before the scheduled court hearing, and without informing Lake of the decision before she traveled from Oakland to Los Angeles to attend the court appearance, the BOP issued its second denial of Tapia-Ponce’s petition. The government’s official notice of denial confirmed Tapia-Ponce’s many medical problems, including severe degenerative heart disease and prostate cancer.

Devoid of Compassion

Published on: December 7, 2012 | by Todd A. Bussert

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.

Compelling Compassion

Published on: July 11, 2012 | by Todd A. Bussert

Most federal prisoners and their loved ones know all too well that aside from a “nonviolent” offender’s successful completion of RDAP, the only mechanism that enables the Bureau of Prisons to reduce the length of a sentence beyond awarding statutory Good Conduct Time credit is a motion brought by the Director pursuant to 18 U.S.C. § 3582(c)(1)(A), more commonly known as “compassionate release.” Unfortunately, the BOP’s use of its statutory authority is quite meager. The BOP Director will typically file a 3582(c)(1)(A) motion only when a prisoner is on his literal death bed (a.k.a., “the death rattle rule”), and often not even then. As the General Accounting Office recently confirmed: “BOP officials recorded that from calendar years 2009 through 2011, 55 requests for early release were approved by the BOP Director and brought as motions to a sentencing judge out of 89 requests approved at lower levels and received at BOP headquarters.” This is a far cry from the U.S. Sentencing Commission’s guidance, which, as this law review article emphasizes, also does not do enough to facilitate a meaningful safety valve mechanism.

With that backdrop comes a post yesterday on the Ninth Circuit Blog from District of Oregon Chief Deputy Federal Public Defender Steve Sady detailing an extraordinary legal victory that enabled BOP prisoner Phillip Smith to return home shortly before his death of acute myelogenous leukemia. In addition to links to legal pleadings, there is a much-watch video interview with Mr. Smith one week before his passing that offers tremendous insight into the “compassionate release” process.

Legal arguments are one thing; the practical and human costs are another. Phillip hoped that by putting a human face on the problem, things would change for the hundreds of prisoners whose sentencing judges never even know of the extraordinary and compelling circumstances that warrant a second look resentencing.