BOP Makes Little Use of Expanded Compassionate Release

By Christopher Zoukis

Three years ago exactly, the Bureau of Prisons (BOP) adopted regulations revising and expanding its often-criticized compassionate release program, under which federal inmates’ sentences can be reduced.

But the program still has a small impact even among eligible inmates, a group that can be expected to grow as the average age of prisoners climbs (last year, the elderly made up 26% of inmates at federal minimum-security prisons and 23% at low-security ones).

Also known at BOP as the RIS (“reduction in sentence”) program, compassionate release was part of the 1984 comprehensive crime law, and authorized federal courts to reduce an inmate’s sentence when the BOP finds “extraordinary and compelling” circumstances justify such action (both the statute and BOP regulations left undefined precisely what constitutes “extraordinary and compelling” circumstances).

A federal judge’s ability to reduce a federal inmate’s sentence for such reasons depends on BOP recommending a reduced sentence, and inmates cannot petition a court for compassionate release (they can however ask the BOP to make the request). The compassionate release decision is entirely left to BOP, though it considers whether releasing the inmate would pose a threat to others, takes into account policies of the U.S. Sentencing Commission, notifies victims, and consults with federal prosecutors in making individual decisions.

So how has compassionate release worked in practice? From the outset, it’s been practically invisible. Even many prisoners of advanced age, with no record of violence, facing serious health challenges federal facilities may not be able to meet, have been left to die in jail, rather than recommended for compassionate relief.

The rarely-used program has been lambasted by clemency advocate and the general press, and even by the inspector general (IG) at the Department of Justice. In a 2013 report, IG Michael Horowitz found, out of a federal prison population well over 200,000 inmates, on average only two dozen inmates a year were released through the compassionate relief program.

The report and subsequent reports noted a well-managed compassionate release program would save BOP money and help deal with overcrowding, but said BOP’s compassionate release program had been managed poorly and inconsistently, without clear standards (for example, BOP’s program summary said non-medical reasons could be a basis for compassionate release, but the IG could not find BOP taking such action even once during a six-year period).

BOP soon adopted new regulations broadening eligibility for the program, reducing the threshold age to 65 from 70, and cutting the required time to have already been served from 30 years to the lower of 10 years or 75% of the inmate’s sentence. The new regulations also broadened the grounds for compassionate release to include the inmate’s family circumstances, such as the death or incapacity of a caregiver for the inmate’s child, or the incapacity of the inmate’s spouse or registered domestic partner.

But the agency seems to have altered its practices very little. A follow-up report from the DOJ IG two years after BOP expanded the program found only two inmates had been released due to the changes. The compassionate release pace has picked up recently, as nearly 200 inmates got compassionate release in the past fiscal year, compared with 80 the previous year, and 61 and 39 in the previous years.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com