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Death or Incapacitation of Child’s Caregiver

Death or Incapacitation of Child’s Caregiver

Federal prisoners may pursue compassionate release when the caregiver of the prisoner’s biological or adopted child has died or become incapacitated. The regulations and policy outlining this extraordinary and compelling circumstance contemplate the possible compassionate release of a federal prisoner when death or incapacitation suddenly leaves a minor child without a family member caregiver.

Requirements for Death or Incapacitation of Child’s Caregiver Compassionate Release Petition

A federal prisoner who finds him or herself in this circumstance may Death or Incapacitation of Child's Caregiver compassionate release submit an application for compassionate release to the Warden. It is crucial that the prisoner supply all documentation to support the claim, including the following, which are required:

  • A statement that the caregiver has died or become incapacitated, and that person was the caregiver for the prisoner’s biological or adopted child.
  • A statement that the deceased or incapacitated caregiver was the only family member capable of caring for the child.
  • The name of the caregiver, the relationship of that person to the prisoner, and a statement that the caregiver is a family member of the child.
  • An official copy of the death certificate, if applicable.
  • Verifiable medical documentation of incapacity, if applicable.
  • Verifiable documentation that the prisoner is the child’s parent.
  • Verifiable documentation providing the name and age of the child.
  • A statement and documentation of the prisoner’s release plan, including housing and the means to support the child.
  • Authorization from the prisoner allowing the BOP to obtain any documentation related to the application.

To simplify the process of applying for compassionate release, see our Sample Compassionate Release Petition for Death or Incapacitation of a Minor Child’s Caregiver.

Institutional Committee Review

Once the Warden is in possession of the application and supporting documents, she may deny the claim or move forward with a second stage of review. At this stage, the Warden convenes a committee for further study of the application. The committee will generally include the prisoner’s unit manager, counselor, and any other relevant staff, including social workers, psychologists or doctors. The committee gathers additional documentation, including the following:

  • A general description of the child’s mental and physical condition.
  • A description of the child’s care, both prior to the prisoner’s arrest and during incarceration.
  • Letters or documentation indicating that the deceased or incapacitated caregiver was and is the only family member caregiver (besides the prisoner) capable of caring for the child.

Warden’s Reviewing Criteria

In making the decision at the institutional level, the Warden considers the following factors:

  • The prisoner’s offense, current age, age at the time of the offense, release plans, institutional adjustment, disciplinary infractions and personal history.
  • Length of sentence and amount of time left to be served.
  • Comments from victims.
  • Whether release would minimize the severity of the offense.
  • Whether the prisoner’s history includes violent acts before or during incarceration.
  • Whether the prisoner had drugs, firearms or other dangerous substances in the home while caring for the child prior to incarceration.
  • Evidence of the prisoner’s care of the child before and after arrest, including during incarceration.
  • Evidence of child abuse.
  • Evidence of whether the prisoner has ever lost custody of a child, is deportable, has received public funding, had a job, or engaged in institutional programming.

Compassionate Release Review and Approval Process

The Warden will also consider the best interests of the child in making a recommendation. As with all compassionate release requests, if the Warden approves, the application is forwarded to the General Counsel. If General Counsel signs off, the application goes to the Director. If the Director approves the application, the U.S. Attorney for the district in which the prisoner was sentenced will move the court for a reduction in sentence to time served. If the court grants the motion, the prisoner is immediately released.

Read our page on the compassionate release approval process to learn more about the steps involved.

Utilizing Competent Counsel

We strongly urge you to not engage in this process alone. At the Law Offices of Brandon Sample, we have experience in researching, writing, and shepherding compassionate release petitions based on the incapacitation of a child’s caregiver. Contact us to learn how we can help and give you the best possible chance of a successful petition.

To learn more about the death or incapacitation of child’s caregiver category of compassionate release or to retain the services of an attorney, call 802-444-4357.

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