How the First Step Act Changed Federal Compassionate Release

The First Step Act of 2018 ushered in a list of changes to the way that compassionate release works in the federal prison system. These reforms were highly anticipated by inmates and their loved ones who experienced endless hurdles under the prior law that set out the requirements to meet for compassionate release. This article provides an in-depth analysis of how the First Step Act of 2018 hanged the compassionate release program and what inmates and their loved ones can expect in terms of petitioning for compassionate release.

Click here to read the updated compassionate release program statement.

What is Compassionate Release?

Compassionate release is a process by which prison inmates may be granted immediate release from custody under extremely rare circumstances. This is different from parole, which may be granted to state prisoners based on their behavior while incarcerated. Rather than depending on the defendant’s behavior, compassionate release is a product of extraordinary changes in a defendant’s circumstances. These are typically medical changes or humanitarian reasons.Compassionate Release

While the circumstances may vary, compassionate release from federal prisons is most commonly granted in situations where the defendant is suffering from a terminal illness and is only expected to live a short amount of time. If a prisoner has a medical, but non-terminal illness, he may also be released from custody if the prison conditions would make it extremely difficult or impossible to care for him or her properly. For example, a prisoner who has Alzheimer’s would fall into this category. Compassionate release for familial reasons, such as being the only caregiver for a minor child, is very rarely granted. Suffice it to say, compassionate release has always been extremely difficult to achieve and is only available to select groups of inmates in extraordinarily challenging and compelling circumstances.

What is the First Step Act of 2018?

First Step Act of 2018 is a piece of federal criminal justice reform legislation which, in part, modifies the federal compassionate release framework. It is monumental in that it is the first major piece of criminal reform legislation to be signed into law in the 10 years since the passage of the Second Chance Act. Reforms to compassionate release for prisoners are covered by Title VI, Section 603 of the First Step Act.

Although the compassionate release reforms included in the First Step Act are not as comprehensive as we would like, there are significant changes from prior legislation that make compassionate release closer to a reality for more inmates.

Compassionate Release Before the Passage of the First Step Act of 2018

Prior to the passage of the First Step Act of 2018, compassionate release was governed almost exclusively by the Federal Bureau of Prisons (BOP) decision-making process.

Prior to the First Step Act of 2018, Only the BOP Could File a Motion for Compassionate Release.

A prisoner could not initiate the compassionate release process with their sentencing court. The prisoner was entirely at the mercy of the BOP to file a motion for compassionate release with the court. Thus, if the BOP refused to file a motion for compassionate release, the prisoner had absolutely no recourse to follow up or appeal that decision. Even if the inmate met all of the criteria for compassionate release, the BOP could still choose not to move forward with an application for compassionate release.

Relying on the BOP to Initiate Motions for Compassionate Release Left Many Sick and Elderly Inmates Unnecessarily Incarcerated.

The compassionate release statistics from the past several years really show the need for reform. For instance, the BOP approved only 6 percent of applications for compassionate release from more
than 5,400 inmates from 2013 to 2017. During that same period, 266 inmates who requested compassionate release died behind bars while awaiting a final determination. Increasing access to compassionate release for sick and elderly inmates was one of the major goals for criminal justice reformers in supporting the First Step Act of 2018.

Inmates Denied Compassionate Release Could Only Appeal Through the Administrative Remedy Program.

When an inmate was denied compassionate release, he had to follow the procedures laid out by 28 C.F.R. § 571.63 and first submit a written appeal to the warden. Assuming that the warden also denied the prisoner’s appeal, the prisoner would have to appeal within 20 days to the applicable Regional Director. The final appeal would be to the General Counsel of the BOP. Pursuant to 18 U.S.C. § 3582(c)(1)(A), the courts have no authority to review an appeal from a decision of the Administrative Remedy Program. This means that the buck essentially stopped with the federal prison system to prevent the court from hearing an inmate’s request for compassionate release.

The Final Step for Compassionate Release Involved the Court Making a Final Decision on the BOP’s Motion.

Even if an inmate somehow convinced the BOP to file a motion on his or her behalf for compassionate release, the district court would still have to rule on that motion. The district courts have almost always granted motions for compassionate release at that point because the BOP has historically screened applications so harshly. In the event that the district court refuses to reduce the inmate’s sentence, the inmate could appeal to the applicable U.S. Court of Appeals.

Changes to Compassionate Release as a result of the First Step Act of 2018

Although the First Step Act of 2018 does not alter the statutory standards that must be met for compassionate release, it does change the process by which an inmate can assert their compassionate release request if the Bureau of Prisons fails to make a timely decision.

Inmates can Bring Their Own Motions for Compassionate Release.

An inmate must still first approach the BOP to initiate a compassionate release petition, but there is no recourse for inmates whose petitions are denied by the BOP and never filed with the district court. Now, if the warden fails to act on the inmate’s petition for compassionate release within 30 days, the inmate may file directly in the district court. The inmate may also file his or her motion in court once the administrative appeals process has been exhausted.

To be clear, these changes do not necessarily pave a smooth path to compassionate release for many prisoners. Either their warden must not respond to the request for a total of 30 days or an inmate must exhaust their administrative remedies prior to filing directly in their sentencing court.

The First Step Act of 2018 Protects the Rights of Terminally Ill Inmates.

-Inmates’ Family Members Must Be Notified within Three Days of a Terminal Illness Diagnosis.

If an inmate receives a diagnosis of a “disease or condition with an end-of-life trajectory” while in federal prison, the BOP must notify the inmate’s counsel, family, and legal partner within 72 hours of diagnosis. This allows the family to arrange for visitation and the inmate’s attorney to begin preparing a compassionate release petition.

-Family Visitations Must Be Scheduled After Terminal Illness Diagnosis.

The First Step Act of 2018 provides for a visit with family members of inmates diagnosed with a terminal illness within seven days of the diagnosis. The BOP is not allowed to cite security concerns or an inmate’s poor behavior while in prison as reasons to deny a terminally ill inmate the visitation with his or her family.

-BOP Officials Must Assist Terminally Ill Inmates with Their Compassionate Release Petitions.

The First Step Act of 2018 restricts the BOP’s ability to block or stall a terminally ill inmate’s compassionate release petition. If the inmate, his attorney or family members request information from the BOP to complete the compassionate release petition, the BOP must promptly provide this information.

In addition, the BOP is required to process any request for compassionate release from a terminally ill inmate within 14 days of receipt. This does not extend the time that an inmate must wait to appeal a decision to the district court. The BOP still only has 30 days from when a compassionate release petition is filed to issue a decision before an inmate can appeal.

Also, the BOP is now responsible for visibly posting information about the compassionate release process for inmates. They cannot prevent inmates from seeking out information about the process. This includes informing inmates that they are able to appeal a denial of compassionate release directly to the district court.

-The BOP is Required to Provide an Annual Report to Congress on Petitions for Sentence Reductions.

In an effort to increase the transparency of the compassionate release process, the First Step Act of 2018 imposes a reporting requirement on the BOP. They must submit information to Congress annually on every aspect of the compassionate release process, including the number of petitions filed, how quickly the BOP processed the petitions, the number of family visit requests that the BOP denied and the reasons for denying the requests.

Our Experienced Compassionate Release Attorneys Stand Ready to Help

If you or a loved one are interested in pursuing a compassionate release, please call us at 802-444-4357 to speak with one of our experienced compassionate release attorneys. We can explain the process, answer your questions, and help give you or your loved one the best possible chance at obtaining a compassionate release.