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Death or Incapacitation of Child's Caregiver

1. What is the basis of the Death or Incapacitation of Child's Caregiver compassionate release?

This category of compassionate release allows incarcerated parents to be released from custody so they can care for their child when the child's existing caregiver has died or become incapacitated.

2. What policy governs this category of compassionate release?

All categories of compassionate release are governed by Bureau of Prisons Program Statement 5050.49, Compassionate Release/ Reduction in Sentence. Section 5 of this policy covers this category of relief.

3. What is the Criteria for Death or Incapacitation of Child's Caregiver compassionate release?

The inmate must have a biological or legally adopted child or children whose family member caregiver has either died or become incapacitated. The program statement clarifies that the child or children must be under the age of 18.

4. What constitutes incapacitation?

Policy defines incapacitation as being either "a severe injury (e.g., auto accident)" or "severe illness (e.g., cancer)" which "renders the caregiver incapable of caring for the child."

5. This category of relief requires a special two-stage review process. What occurs in the first stage?

In the first stage, the inmate is required to provide the Warden with additional information which pertains to the underlying family situation. This information includes:

  • A statement verifying the death or incapacitation of the caregiver and that the person was, in fact, caring for the inmate's child.
  • A statement verifying that this caregiver was the "only family member capable of caring for the inmate's child."
  • The name of the deceased or incapacitated caregiver, their relationship to the inmate, and a statement that the caregiver was related to the child.
  • If the caregiver died, their death certificate. If they became incapacitated, "verifiable medical documentation of the incapacitation."
  • Documentation that the inmate is the parent of the child. Policy stipulates that " acceptable documentation includes birth certificate, adoption papers, or verification of the inmate's paternity."
  • A document stating the child's name and age.
  • The inmate's release plan, which includes a statement explaining housing and financial means "to care for the child immediately upon the inmate's release."
  • Authorization for the Bureau to "obtain any information or documents" from any source "about the inmate, family members, and minor child."

If any of the above information is not furnished or adequate, the Warden is authorized to deny the compassionate release request.

6. What occurs in the second review stage?

In the second stage, "the Warden convenes a committee consisting of the inmate's unit manager, correctional counselor, and any other relevant staff . . . to investigate the facts and circumstances provided by the inmate and to review supporting letters and documents." The committee's goal is to gather relevant documents and verification so that they can be provided to the Warden. Such information and documentation includes:

  • A general description of the child's physical and mental condition.
  • Documentation that proves that the deceased or incapacitated caregiver was the only available family caregiver. These documents should include verification that this caregiver was caring for the child leading up to their death or incapacitation, an explanation of who is currently caring for the child, and, if the child is in foster care, "documentation verifying that the inmate will be able to immediately obtain custody of the child."
7. What factors are assessed as it concerns this category of compassionate release?

There are a number of factors considered when assessing this form of compassionate release. They broadly include:

  • Any violent conduct
  • Degree and extent of prior and current care provided to the child
  • Evidence of child abuse, neglect, or exploitation
  • Parenting skills and financial obligations
  • Termination or loss of parental rights
  • Detainers
  • Work history and history of public assistance
  • Programming and classes taken while in custody
  • Inmate Financial Responsibility Program (IFRP) participation
8. What is the likelihood of being granted compassionate release due to the incapacitation or death of a family member caregiver?

Unfortunately, the chances are slim, as they are for all categories of compassionate release. As detailed on our Compassionate Release Statistics page, between 2014 and 2018, 3,059 applications were filed. Of these, 282 were for child caregiver reasons. Only 33 of these were actually referred to the Director for review. During this period, 306 requests were granted for all categories of relief, and 2,405 were denied.

9. If I was to move forward on a compassionate release petition today, what should I do?

The traditional process applies for all categories of compassionate release. Select a category of relief and secure the required documentation. Draft a petition which fulfills the criteria for the category in question and attach supporting documentation. Finally, file the request with the institution's Warden.

10. If I need help, where can I turn?

The best answer is to hire a compassionate release attorney. Our firm can conduct an investigation into your personal, medical, and family background, draft a quality petition, secure and attach relevant documentation to the petition, and file the request. We can also monitor the request's progress and intervene when necessary. While there are no guarantees, we can give you the best possible chance of success.

If these Death or Incapacitation of Child's Caregiver FAQs didn't answer all of your questions, call us at 802-444-4357.

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