The Federal Bureau of Prisons’ compassionate release policy is a good mechanism for releasing inmates and thus relieving prison overcrowding and costs – that is, it would be a good mechanism if it were implemented well.

What is “compassionate release”?

The concept of compassionate release is that if an inmate is dying, he or she is released from prison, since presumably the inmate is no longer a danger to society and may as well be cared for by loved ones instead of in a prison medical facility at taxpayers’ expense. Usually it is not limited to literally “dying,” but other special and unusual circumstances may qualify an inmate for compassionate release as well. There are two difficult parts in implementing such a policy: What counts as “dying” (or for any other grounds for compassionate release), and what is the process (and how lengthy is it) for approving such releases?

What is the history of the Federal Bureau of Prisons’ compassionate release policy?

Past studies have found the Bureau of Prisons’ (BOP) record on compassionate release unimpressive. From 2006 to 2011, only about 24 inmates per year were released under the compassionate release policy. During that same period, 28 inmates (total; on average, almost 5 per year) died before their request for compassionate release was processed. [1] As a result of general criticism, in April 2013 the BOP released a set of guidelines for compassionate release that was a little more liberal. For example, under the old guidelines, an inmate whose life expectancy was 12 months or less was eligible, but under the April guidelines, one was eligible if one’s life expectancy was as great as 18 months. Besides that, the BOP said it would process requests for compassionate release more efficiently. However, the general feeling was that the guidelines released in April 2013 were not enough. Given that the federal prison system was about 40% over capacity in 2013 and its budget is growing too quickly, that older inmates are much less likely than their younger counterparts to commit crimes after being released, and that ailing older inmates cost taxpayers more, society can afford to release elderly and dying inmates without risking a significant increase in crime rates. [2]

What are the current guidelines for compassionate release?

In August 2013, the BOP released new guidelines for compassionate release. These guidelines define both medical and non-medical reasons for inmates to be released early. Following is a summary of these current guidelines for what makes an inmate eligible:

  • One is dying, that is, one has a terminal, incurable illness and is expected to live only 18 more months or less.
  • One is debilitated, that is, one has an incurable condition such that one is capable of only limited self-care (or none) and is confined to bed or a wheelchair more than 50% of waking hours.

The above two conditions are considered grounds for “medical requests.” The other possible conditions for compassionate release, explained below, are considered “non-medical requests,” not because they have nothing to do with health, but because they are not urgent issues concerning the inmate’s personal health.

  • One is elderly and has served most of one’s sentence, that is,
    1. One committed one’s crime after Oct. 31, 1987, and one is 70 years of age or older and has served at least 30 years of one’s sentence. (Presumably no one would qualify for this until the end of 2017.)
    2. One is at least 65 years of age, has served at least half of one’s sentence, and, due to age, one’s health is deteriorating and not expected to improve.
    3. One is at least 65 years of age and has served the greater of: 75% of one’s sentence or 10 years.
  • The caregiver of the inmate’s child has died (or become incapacitated), and the inmate is the only person available to care for their child.
  • The inmate’s spouse has become incapacitated, and the inmate is the only person available to care for them. (The policy specifies that the relationship must have been established before the inmate’s arrest, but any legally recognized union, including common-law marriages, qualify.)

The guidelines specify that another person can make a request on behalf of an inmate. When a request is made, it goes thru the process below. (If the request is a medical request, then all parties are supposed to process it as quickly as they can.)

  1. The request is submitted to the prison Warden.
  2. If the Warden approves the matter after examining the circumstances, he recommends it to the General Counsel.
  3. The General Counsel asks for the recommendation of the Medical Director (for medical requests) or the Assistant Director, Correctional Programs Division (for non-medical requests).
  4. If the General Counsel thinks the request should be approved, he recommends it to the Director of the BOP.
  5. If the BOP Director approves the request, he contacts the U.S. Attorney in the district where the inmate was sentenced so that he can ask the sentencing court to grant the appropriate sentence reduction.
  6. After this, the result gets back to the Warden, who releases the inmate at the appropriate time.

What now?

The question remains, however: Will the BOP actually interpret these guidelines in a restrictive manner or in a way that is more compassionate? None of the qualifications listed above ensure an inmate’s release; the review of all requests is subject to BOP officials’ judgment on “whether release would minimize the severity of the offense” (as the guidelines put it) and many other factors involving the inmate’s conduct and the inmate’s situation upon release. We must also hope that the BOP will strictly follow their own guidelines. It has even been rumored that the BOP officials in training seminars have stated that requests filed by anyone, including attorneys, on behalf of incapacitated inmates may be disregarded.

If you are reading this because you are concerned about obtaining compassionate release for a federal inmate, let a federal defense firm with experience in federal inmate issues guide you through the process. Call us at (512) 693-9LAW, email, or send us a message via the “Contact Us” page.

[1] For more history, see Kent Faulk’s article “‘Compassionate release’ program for federal prisoners expanded.”
[2] For more statistics and research into the estimated number of eligible inmates and projected cost savings, see the Urban Institute’s “Stemming the Tide” study.


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