Federal compassionate release permits the Federal Bureau of Prisons to release specific inmates due to extraordinary and compelling reasons. The period of imprisonment is effectively converted into a period of supervised release if the petition is granted.
Table of contents
- What is Compassionate Release?
- Procedural Overview of Compassionate Release
- Denial of Compassionate Release
- Categories of Compassionate Release
- Terminal Medical Condition
- Debilitated Medical Condition
- Elderly Inmates
- Death or Incapacitation of the Family Member Caregiver
- Incapacitation of a Spouse or Registered Partner
- COVID-19 Risk
- Compassionate Release Determination Factors
- Elderly Offender Home Detention Program
- Our Process for Seeking Compassionate Release
- Why You Should Hire the Zoukis Consulting Group
- Your Federal Prison Compassionate Release Experts
What is Compassionate Release?
Federal inmates may file compassionate release petitions seeking early release based on a limited number of justifications. Traditionally, inmates filed compassionate release petitions based on one of five justifications:
- Extraordinary or compelling reasons
- Medical circumstances (i.e., terminal or debilitating medical condition)
- Elderly age
- Death or incapacitation of family member caregiver
- Incapacitation of a spouse or registered partner
In the pandemic era, inmates have successfully obtained compassionate release based on the COVID-19 pandemic and specific underlying health conditions. These health conditions must place them at greater risk for COVID-19 contraction and severity of response. Inmates’ sentences are converted into supervised release if the court grants the petition. In effect, they are released from custody and placed under the supervision of U.S. Probation.
Before the COVID-19 pandemic, primarily terminal or severely debilitated inmates were granted compassionate release. While other justifications are permitted, they have traditionally rarely been seriously considered by the Bureau.
Since the advent of COVID-19, sharp federal criminal defense lawyers have used the extraordinary and compelling language to argue for release. These more modern compassionate release petitions focus on underlying health conditions that place the specific inmate at greater risk for COVID-19 contraction and severity of response.
Procedural Overview of Compassionate Release
Federal prisoners and their counsel may petition wardens for compassionate release. The trajectory of the review process depends on what compassionate release provision is employed. We present the complete list of authorized compassionate release justifications below.
Medical and COVID-19 Reasons Process
Once a warden receives a compassionate release petition based on medical reasons or COVID-19 risk factors, they refer the request to the institution’s clinical director for a response. The clinical director prepares a medical summary and a recommendation for the warden’s review. If the warden approves the petition, it is forwarded to Central Office for review.
Non-Medical Reasons Process
If the request is for non-medical reasons, the warden convenes a committee to review the petition. This committee typically consists of the inmate’s unit manager, correctional counselor, and “other relevant staff” (e.g., social workers, physician, psychology staff, etc.). This committee reviews supporting documentation and makes a recommendation to the warden. If the warden approves, the request is forwarded to the Central Office.
All Other Compassionate Release in Federal Prison Requests Process
For all other requests, the warden has the option to solicit input from the prison’s clinical director or a committee, but this is not required. The warden makes their own determination without consulting other prison staff. The request is sent to Central Office if the warden approves.
Central Office Review
The prison compassionate release review process can take several different tracts based on the reason for the request.
For medical and COVID-19 requests, the petition is first reviewed by the Office of General Counsel. They then refer the matter to the Medical Director for review and recommendation. The Medical Director then forwards their recommendation to General Counsel, who makes a recommendation to the Director.
For non-medical requests, the petition is also first reviewed by the Office of General Counsel but then forwarded to the Associate Director, Correctional Programs Division. The Associate Director also reviews the request and forwards their recommendation to General Counsel. This final recommendation is sent to the Director.
If the Director approves, the request is submitted to the U.S. Attorney’s Office for submission to the sentencing court. The inmate’s sentencing judge then has final authority to approve or deny the petition.
Denial of Compassionate Release
Unfortunately, the Federal Bureau of Prisons staff denies many compassionate release requests. In years past, many terminal inmates died before receiving a determination. But following the First Step Act’s passage, the Bureau now has a much tighter timeline for approving or denying compassionate release requests.
As you consider this process, remember that clinical directors, convened staff teams, the Medical Director, and the Associate Director can only make recommendations. Wardens, General Counsel, and the Director are the only ones who can formally deny the actual petition.
Appealing a Denial
If the request is denied, inmates can appeal the denial through the Administrative Remedy Program. If the warden fails to respond within 30 days, the inmate can consider this a denial.
While many inmates, and some attorneys, argue that the inmate can then proceed directly to court, this is often a recipe for disaster. The Prison Litigation Reform Act requires inmates to provide the Federal Bureau of Prisons with an opportunity to review inmate complaints before litigation. Failure to exhaust administrative remedies often acts as a procedural bar to litigation. While there are limited circumstances where an inmate need not formally grieve the denial, filing an administrative remedy should be considered the rule, not the exception.
After exhausting administrative remedies, the inmate can file their compassionate release petition with their sentencing court. While inmates can file these requests pro se (i.e., without an attorney), we at the Zoukis Consulting Group strongly recommend against this. While it is unfortunate, the reality indicates that pro se litigants are far less successful than those represented by counsel.
Categories of Compassionate Release
The below sections discuss each of the six categories of compassionate release. Please note that each category has different qualifications and governing internal review processes.
Terminal Medical Condition
This category applies to inmates who are diagnosed with terminal illnesses. The Federal Bureau of Prisons defines this as a “terminal, incurable disease.” BOP policy also states that prison healthcare staff must determine the inmate has a life expectancy of 18 months or less.
The federal Sentencing Guidelines colors this discussion. Whereas the Bureau asserts the 18 months or less life expectancy provision, the U.S. Sentencing Commission disagrees. According to the Guidelines, this must constitute “a serious and advanced illness with an end of life trajectory.” Critically, the Guidelines’ commentary explains that a “specific prognosis of life expectancy . . . is not required.”
In reviewing these compassionate release requests, the Bureau is to consider the following factors:
- Assessment of the primary (i.e., terminal) disease.
- The disease’s prognosis.
- Impact of other serious medical conditions.
- Degree of functional impairment.
Additionally, functional impairment is not required when a terminal illness is present but can be considered. For example, it would be relevant if the inmate also suffers from limitations on activities of daily living (e.g., eating, getting dressed, etc.).
Specific examples of an end of life trajectory illness include:
- Metastatic Solid-Tumor Cancer
- Amyotrophic Lateral Sclerosis (i.e., ALS)
- End-Stage Organ Disease
- Advanced Dementia
The inmate should also prove that the condition was unknown before the sentencing verdict. If the underlying terminal condition was known before sentencing, the BOP will likely not approve. This is because the judge was likely aware of the condition and sentenced the defendant with this knowledge.
Debilitated Medical Condition
The debilitated medical condition compassionate release category contemplates inmates who suffer from an “incurable, progressive illness.” Additionally, this category covers inmates who have suffered a “debilitating injury from which they will not recover.”
The Federal Bureau of Prisons qualifies this category of compassionate release under two standards:
- Inmates who are “completely disabled,” meaning they can’t “carry on any self-care” and are “totally confined to a bed or chair.”
- Inmates who are “capable of only limited self-care” and are confined to a bed or chair for more than 50 percent of their waking hours.
The federal Sentencing Guidelines provisions somewhat differ from Bureau of Prisons’ policy. They present two related qualification categories:
- Prisoners suffering from a “serious physical or medical condition.”
- Prisoners suffering from a “serious functional or cognitive impairment.”
The Sentencing Guidelines also highlight that the underlying condition must “substantially diminish” the prisoner’s ability to provide “self-care within the environment of a correctional facility[.]” Additionally, the inmate must not be “expected to recover.”
Examples of qualifying cognitive defects include Alzheimer’s disease and traumatic brain injury. These conditions must affect the prisoner’s mental capacity or mental functioning.
Bureau policy clarifies that cognitive defects are not required when a severe physical impairment is present. With this being said, the BOP may consider cognitive defects and whether they create an inability of the prisoner to re-offend.
Certain elderly inmates are eligible for compassionate release. The Bureau groups this category of compassionate release into three distinct elderly inmate groups:
- “New Law” Elderly Inmates
- Elderly Inmates with Medical Conditions
- Other Elderly Inmates
Each group of elderly inmates and their eligibility criteria is discussed below. With the below Bureau policy in mind, the U.S. Sentencing Guidelines clarify that all groups must experience “deteriorating physical or mental health” because of the aging process.
“New Law” Elderly Inmates
“New Law” elderly inmates are inmates who were sentenced on or after November 1, 1987. They must be 70 years old or older and have already served 30 years or more of their sentence.
The U.S. Code provides additional discussion regarding this category of prison compassionate release. It adds the provision that the inmate must not be “a danger to the safety of any other person or the community[.]”
Elderly Inmates with Medical Conditions
The Elderly Inmates with Medical Conditions category requires the inmate to:
- Be at least 65 years old or older.
- Suffer from an age-related “chronic or serious medical condition.”
- Experience a “substantially diminished” ability to function due to deteriorating “mental or physical health.”
- Medical treatment must produce “no substantial improvement” in the inmate’s mental or physical condition.
- The inmate must have already served 50 percent of their sentence.
In addition to the above eligibility criteria, the Bureau of Prisons considers the following criminality risk factors:
- Age at the time of the instant offense.
- Whether the inmate suffered from the same conditions when they committed their criminal conduct.
- Whether the inmate suffered from the same medical conditions at the time of their sentencing.
It should be highlighted that the Sentencing Guidelines differ from the above criteria. Instead of the 30 years served and 70 years or more age requirements, the Guidelines specifically state that the inmate must be:
- At least 65 years old.
- Experiencing age-related “serious deterioration in physical or mental health[.]”
- And served at least 75 percent of their sentence or at least ten years in custody, whichever is less.
Other Elderly Inmates
The final elderly offender compassionate release category is a catch-all for inmates who don’t fall within the previous two groupings.
This category requires the inmate to be at least 65 years old or older. Additionally, they must have served the greater of 10 years in custody or 75 percent of their sentence.
Federal Bureau of Prisons policy specifically highlights that inmates who were 60 years old or older at the time of their sentencing should typically not be considered for this form of compassionate release.
Death or Incapacitation of the Family Member Caregiver
Inmates who have minor children may seek compassionate release when their child’s primary caregiver either dies or becomes incapacitated.
Bureau of Prisons policy clarifies that the inmate must be either the child’s biological parent or adopted parent. For this provision, the child must not yet have reached the age of 18.
The BOP defines incapacitation as the family member caregiver “suffer[ing] from a severe injury . . . or suffer[ing] from a severe illness[.]” This must render the caregiver “incapable of caring for the child.” Examples include a serve car accident (i.e., injury) and cancer (i.e., illness).
Federal Bureau of Prisons’ policy outlines numerous factors that must be considered when determining whether to grant this form of compassionate release. For example, the Bureau considers whether the inmate’s release is in the child’s best interest.
Other consideration factors include:
- Whether the inmate has a history of violence.
- Whether firearms, drugs, drug paraphernalia, or dangerous substances were previously in the home when the inmate cared for their child.
- The degree of contact the incarcerated parent has with their child.
- If the inmate has a history of child exploitation, neglect, or abuse.
- Whether there is a documented history of prior bad parenting (e.g., restraining orders, removal of the child from the home, back due child support).
- Whether the inmate has a detainer for deportation and the deportation country is the same as where the child lives.
- If the inmate has received public funding and whether they have a history of earning a “living wage.”
- What classes the inmate has taken during incarceration (e.g., parenting skills classes, anger management classes, etc.).
Inmates seeking compassionate release under this provision are strongly recommended to provide available documentation proving the above factors.
Incapacitation of a Spouse or Registered Partner
Inmates may also apply for compassionate release if their spouse is incapacitated. This is only possible where the inmate is the only available caregiver.
Per Bureau policy, a spouse must be part of a legal marriage or a “legally-recognized common-law marriage.” Additionally, registered partners are part of a “civil union” or “registered domestic partnership.” Likewise, the relationship must have been established before the date of arrest for the instant criminal conduct.
The Bureau presents two categories of incapacitation under this compassionate release provision. The spouse or registered partner must have:
- Suffered a serious or debilitating physical injury or illness to such an extent that they cannot carry out “any self-care” activities and are “totally confined to a bed or chair.”
- Suffered a serious cognitive defect that affects their “mental capacity or function” but does not necessarily confine them to a bed or a chair (e.g., a traumatic brain injury or Alzheimer’s disease).
Bureau policy outlines several additional factors for consideration:
- Whether the inmate has a history of violence.
- Whether the inmate can financially support their partner, including medical expenses.
- If the inmate has a history of domestic violence.
- If the inmate previously shared a residence with their partner.
- Whether dangerous substances, weapons, or drugs were previously in the home.
- Whether the inmate has previously cared for and maintained contact with their spouse.
- Any evidence of neglect or abuse of the spouse.
- Any documentation regarding special custodial skills or obligations (e.g., restraining orders, child support orders, counseling, removal of children from the home, etc.).
- Whether there is a deportation order, and if it is to the same country as the spouse.
- Whether the inmate has a history of receiving public assistance and if they earned a livable wage before their imprisonment.
- Any classes or treatment programs taken while in Bureau custody (e.g., Inmate Financial Responsibility Program, anger management, etc.).
As with the incapacitation of a family member caregiver, inmates are strongly recommended to provide as much documentation as possible to prove the qualification factors.
The COVID-19 Pandemic, while unfortunate, has provided inmates a way to get a sentence reduction through compassionate release.
Elderly inmates and those with severe and chronic underlying medical conditions are considered at risk of COVID-19 infections. For these reasons, inmates can request a compassionate release if they fall into a medically vulnerable group.
Federal criminal defense lawyers have successfully sought compassionate release due to COVID-19 risk factors. While this is a newer area of law, some federal inmates have secured compassionate release because of:
- An underlying health condition that places them at greater risk for COVID-19 contraction; and
- The underlying health condition creates a greater likelihood of severe COVID-19 reaction.
Unlike the other compassionate release categories, pandemic-based compassionate release is not grounded in specific qualifying factors. Instead, the Bureau of Prisons and courts look at varying factors when determining whether to support and grant such requests.
Bureau COVID-19 Consideration Factors
While this page discusses more generalized compassionate release authority and decisional factors, COVID-19 pandemic-based compassionate release is different. The Bureau appears to pay special attention to these additional factors:
- Underlying health condition that places the inmate at greater risk of contracting COVID-19 and severity of response.
- Prison security level.
- Nature of the offense.
- Length of time served and remaining time.
- Institutional disciplinary history.
- Prevalence of COVID-19 at the specific facility.
Federal Court COVID-19 Consideration Factors
Additionally, various courts have emphasized diverse factors when contemplating granting COVID-19-based compassionate release petitions. The following are generalized factors federal district courts seem to weigh heavily:
- Government Consent: Whether the Government supports the petition. This applies to both the Bureau’s position and the U.S. Attorney’s Office position. If both support the petition, the petition is likely to be granted.
- Health Conditions: Inmates with more significant underlying health conditions, especially respiratory conditions, seem to have an increased potential for relief. While this is generally the case, many factors increase COVID-19 contraction and response severity risk (e.g., diabetes, high blood pressure, Crohn’s disease, previously testing positive for COVID-19, etc.).
- Documentation: Courts look closely at the underlying documentation presented regarding the underlying health conditions. While not dispositive, inmates who fully flesh out their compassionate release petitions and include supporting medical documentation realize a greater likelihood of success.
- Presence of COVID-19 in the Individual Facility: Courts seem to want to see widespread infections and potentially deaths when considering these petitions.
- Representation by Counsel: While also not dispositive, a case review shows that inmates who file pro se (i.e., without an attorney) have significantly increased denial odds.
Compassionate Release Determination Factors
In addition to the above-discussed specific category qualifications, the Federal Bureau of Prisons also considers numerous factors when determining whether to grant compassionate release, including:
- Offense nature and circumstances
- Any criminal history
- Victim comments
- Pending detainers
- Any prior supervised release violations
- How the inmate has adjusted to the institution
- Any misconduct in prison
- The inmate’s personal history as profiled in their presentence report
- Total sentence length and time served
- Current Age
- Age at time of the offense and sentencing hearing
- Release plans (i.e., financial, employment, and medical)
- If granting compassionate release would minimize the crime’s severity
Please note that the above factors are “neither exclusive nor weighted.” They are solely considered to assess whether the underlying circumstances are “particularly extraordinary and compelling.”
Due to the varied nature of compassionate release petitions and uneven application (both in different prisons and federal district courts), it’s challenging to identify specific dispositive factors.
As such, our approach to compassionate release petitions is to address all relevant factors and support every assertion with either legal or medical authority. While more cumbersome and exhaustive than may be necessary, we’ve found success in this approach with our clients.
Elderly Offender Home Detention Program
While not compassionate release, the Bureau’s Elderly Offender Home Detention Program is closely related to the compassionate release for elderly offenders. This provision allows certain elderly federal inmates to be placed in home detention.
This program divides inmate eligibility into two categories: Elderly Offender and Terminally Ill Elderly Offender.
Elderly Offender Home Detention
To qualify under the Elderly Offender Home Detention Program for elderly inmates (i.e., non-medical), they must:
- Be 60 years old or older.
- Have served at least two-thirds of their sentence.
Additionally, the inmate must not:
- Be serving a life sentence for a crime of violence, sexual offense, or terrorism.
- Have prior convictions for violent, terrorism, or sex-related crimes.
- Have any history of violent-, sexual-, or terrorism-related conduct.
- Escaped or attempted to escape from any BOP facility.
- Pose a “substantial risk” of engaging in crime or “endanger” any person or the public if released.
Terminally Ill Elderly Offender Home Detention
Qualifying under the Terminally Ill Elderly Offender category includes the same general qualifications as for non-medical elderly offenders, although there are slight differences.
The primary differences for this category of home confinement include the age of the inmate, amount of time served, and qualifications regarding the underlying medical condition.
The inmate need not have served two-thirds of their sentence. Likewise, the inmate does not need to be 60 years old or older.
Additionally, a Federal Bureau of Prisons doctor must determine that the inmate needs the care of a “nursing home,” “intermediate care facility,” or “assisted living facility.” The inmate must also be diagnosed with a terminal medical condition.
Elderly Offender Home Detention Program Procedures
The procedure to request elderly offender home detention depends on which provision the inmate is filing under.
For non-medical elderly offender home detention, the case manager submits the regular halfway house referral packet to the Regional Reentry Manager. Once the submission is made, the Bureau’s Reentry Services Division conducts a review to determine:
- Whether placement in home detention will result in a “substantial net reduction” in costs to the federal government; and
- Whether the inmate poses “no substantial risk” of continued criminal conduct and whether their release will endanger any person or the public.
Requests under the terminally ill elderly offender home detention prong are processed similar to compassionate release. If the inmate is not appropriate for compassionate release, the Bureau’s General Counsel refers the request to the Reentry Services Division for final determination.
Our Process for Seeking Compassionate Release
The Zoukis Consulting Group has significant experience petitioning the Federal Bureau of Prisons and federal district courts for compassionate release. Below we discuss our typical process of seeking compassionate release for retained clients.
Developing and Submitting the Compassionate Release Petition
Our process starts by developing a request for submission to our client’s case manager. This request presents the qualification factors and shows how our client fulfills these factors. Critically, these requests are supported with documentation of the underlying medical conditions and how these place our clients at greater risk for contracting COVID-19 and having a potentially life-threatening response.
Once the request and supporting documentation are together, we send the request to our client to file with their case manager. The case manager then forwards the compassionate release request to the institution’s warden. The warden then has 30 days to respond.
If the Bureau of Prisons Supports the Petition
If the warden approves, the approval is forwarded to Central Office for General Counsel, the Health Services Director, and the Assistant Director of Correctional Programs to furnish a recommendation.
If all approve, the Director then reviews the request. If approved, it is forwarded to the U.S. Attorney’s Office for submission to the sentencing court for determination.
If the Bureau Denies the Petition
If the warden fails to respond within 30 days, denies the request, or if the warden approves but higher-level Bureau officials deny the request, our team then appeals the denial through the Bureau’s Administrative Remedy Program. After exhaustion of these administrative remedies, our team and partner federal criminal defense attorneys then file a petition in the sentencing court.
Exhaustion of Administrative Remedies
There is a broad circuit split regarding whether exhaustion of administrative remedies is required. While some courts have held that the warden’s failure to respond within 30 days constitutes exhaustion of administrative remedies, other courts have held that inmates still need to appeal the denial to the appropriate regional office and then again to Central Office.
Different courts have granted narrow exceptions to the exhaustion requirement based on the petitioning inmate’s underlying medical conditions and the current status of COVID-19 at the facility.
Sentencing Court Outcomes
Several outcomes are possible once the motion for compassionate release is filed with the sentencing court:
- If the Government supports the petition, the sentencing court may simply grant the petition and order immediate release.
- If opposed by the Government, the sentencing court may deny the petition. There may also be several rounds of reply briefs and motions filed in the case before a final determination.
- In some of the most frustrating cases, sentencing courts have sat on the compassionate release petition and not acted for some time. For example, in one case, a federal judge in Texas delayed deciding for five months and then denied the petition.
Why You Should Hire the Zoukis Consulting Group
Seeking a compassionate release from prison without experienced counsel can be a costly mistake. While inmates may submit multiple compassionate release petitions, the first petition receives far more consideration since it is an issue of first impression. This is often the case in the American criminal justice system.
Depending on the underlying circumstances, these petitions can be complex to develop and complicated to support with relevant authorities. Having an experienced advisor assisting you can mean the difference between approval and denial.
On the other hand, if you have a detailed explanation of your medical condition or other compelling reasons, your request is more likely to be granted. An experienced compassionate release consultant can clarify the issues by ensuring missteps aren’t made and helping arrange for necessary supporting medical documentation.
Your Federal Prison Compassionate Release Experts
Contact the Zoukis Consulting Group if you would like to explore your options for seeking a compassionate release in federal prison. Our team can evaluate your unique circumstances and best advise you on proceeding. Critically, we can also tell you whether a compassionate release is your best early release from federal prison option.
Book a free initial consultation to speak with one of our experienced federal prison consultants today.
Published Mar 7, 2022 by Christopher Zoukis, JD, MBA | Last Updated by Christopher Zoukis, JD, MBA on Apr 26, 2022 at 7:26 pm