Compelling Compassion

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.

Mr. Smith’s case is another example of the excellent work that Steve and the Oregon Federal Defender’s Office have done on behalf of federal prisoners. If only one need not have to fight so hard to compel compassion.
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