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Denials of Compassionate Release

The Bureau of Prisons is authorized by federal law to move federal courts for the compassionate release of select inmates. In order to obtain relief under this law, a federal prisoner must establish "extraordinary and compelling" circumstances that justify early release. The United States Sentencing Commission and the Bureau of Prisons have both crafted policy that defines extraordinary and compelling situations. Unfortunately, most compassionate release applications are denied by the Bureau. This page discusses denials of compassionate release.

Denial of Compassionate Release by the Bureau of Prisons

The Bureau of Prisons takes the "extraordinary" aspect of compassionate release to the extreme. The statute authorizing early release contemplates Denial of Compassionate Releasethe BOP acting in an administrative capacity, simply forwarding qualifying applications to the court system for review. In practice, however, the Bureau takes a very heavy-handed approach to its administration of compassionate release applications.

Most such applications are denied at the Bureau's level. According to data obtain by The New York Times, the Bureau received approximately 5,400 applications for compassionate release between 2013 and 2017. About 350 were approved, 6 percent of the total. During this four-year period, 266 federal prisoners died while waiting for a decision from the Bureau.

Federal regulatory law and BOP policy describe compassionate release procedures, including what a prisoner may do if his application is denied. According to 28 C.F.R. § 571.63, when a Warden denies an application, "the [prisoner] will receive written notice and a statement of reasons for the denial." The prisoner may then use the Bureau's Administrative Remedy Program to appeal the Warden's denial.

The Administrative Remedy Program is governed by 28 C.F.R. part 542, subpart B and Bureau Program Statement 1330.18. Both regulation and policy require the prisoner to first file an appeal to the Warden, using form BP-9 (blue form). Given the fact that the appeal of compassionate release at the institutional level always results from a decision made by the Warden, appealing the decision to the Warden is of questionable value. However, the Administrative Remedy Program is very procedure-driven, and there does not appear to be an exception to the "Warden first" policy. As such, a federal prisoner denied compassionate release should first appeal to the Warden.

Barring an actual miracle, the Warden will deny the prisoner's BP-9. Within 20 days of the denial, the prisoner may appeal to the Regional Director using form BP-10 (yellow form). If the Regional Director denies the appeal, the prisoner may appeal to the General Counsel, also known as the Central Office, using form BP-11 (pink form).

A final administrative decision on compassionate release is generally unreviewable. When Congress granted the Bureau authority to seek the compassionate release of a federal prisoner, it vested complete authority over the decision in the Bureau. Courts have routinely held that 18 U.S.C. § 3582(c)(1)(A) gives the judiciary no authority to grant compassionate release absent a motion made by the BOP.

Prisoners have attacked the denial of compassionate release using 28 U.S.C. § 2241. This is a form of habeas corpus, in which the prisoner challenges the Bureau's execution of his sentence as unconstitutional. Most courts to have ruled on such petitions have found that § 2241 does not authorize judicial review of a BOP decision not to file a compassionate release motion.

Denial of Compassionate Release by the Court

In the rare cases where the Bureau concludes that compassionate release is appropriate, the final decision on release lies with the United States District Court that sentenced the prisoner. After the motion is filed, the court will consider the evidence and any argument of the parties, if applicable, and will render a decision. It appears that in almost every case, when a prisoner is still alive after successfully navigating the crucible of the Bureau's compassionate release process, the federal court will grant the motion, and provide some form of sentence reduction. The court is free to fashion relief in any way it deems fit.

The courts do, on occasion, deny a properly filed motion for compassionate relief. In this event, a prisoner may appeal the decision to the Circuit Court of Appeals. There are very few reported decisions in which a court denied a BOP motion, and even fewer cases of appellate review. This is because the Bureau has historically erred on the side of denying relief. Additionally, most cases approved by the Bureau involve serious, often terminal medical conditions, and the prisoner is dead before any meaningful litigation is under way.

Other Information on Compassionate Release Denials

Please review our frequently asked questions, as well as our profiles of compassionate release denial and our what to do if compassionate release has been denied pages for more information on dealing with a denial.

Experienced Legal Representation

If you or a loved one has been denied compassionate release, please contact us at the Law Offices of Brandon Sample. We can review the underlying request and qualifying circumstances, and present a plan for how to correct any deficiencies. This could include researching and drafting a new compassionate release petition, appealing a denial, or reaching out to select Bureau officials to try to motivate the Bureau to change their position.

To learn more about denials of compassionate release and what to do if you are subjected to one, call 802-444-4357.

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