Incapacitation of Spouse or Partner FAQs

Incapacitation of Spouse or Partner Compassionate Release

1. What is the basis of compassionate release due to Incapacitation of Spouse or Partner?

Inmates who have a spouse or partner who has become incapacitated and who are the only ones available to care for them qualify for this category of relief.

2. What policies govern this category of compassionate relief?

Program Statement 5050.49, Compassionate Release/Reduction in  Sentence, governs all categories of compassionate release. Section 6 specifically pertains to the incapacitation of a spouse or partner.

3. What is the criteria for Incapacitation of Spouse or Partner compassionate release?

Three elements must be satisfied. One, the inmate must have a spouse or registered partner. Two, the spouse or registered partner must have become incapacitated. And three, the inmate must be “the only available caregiver.”

4. Who qualifies as a spouse or registered partner?

A “spouse” is someone who is legally married to the inmate, and includes common law marriages. A “registered partner” is someone who is in a relationship with the inmate that has been “legally recognized as a civil union or registered domestic partnership.”

5. Does the marriage or partnership have to predate incarceration?

Yes. In fact, it must predate the date of arrest.

6. What does incapacitation consist of?

Incapacitation consists of “serious injury” or “debilitating physical illness” which renders the spouse or partner completely disabled, meaning they “cannot carry on any self-care and are totally confined to a bed or chair.” A “severe cognitive defect” can also qualify if it impacts the spouse or partner’s “mental capacity or function” Examples include Alzheimer’s disease and traumatic brain injuries.

7. In addition to what is required for the typical compassionate release request, what other information needs to be provided for review?

The inmate needs to provide the following information to the Warden for review:

  • An explanation and documentation of the incapacitation.
  • A statement that the inmate is the “only family caregiver capable of caring for the spouse or registered partner.”
  • The inmate’s release plans, with an emphasis on housing and the financial means to “care for the spouse or registered partner immediately upon release.”
  • Authorization for the Bureau to obtain any “information or documents” from any source “about the inmate, the spouse or registered partner, or other family members.”
8. What does the committee review consist of?

The committee, which consists of the inmate’s unit manager, counselor, and other staff appointed by the Warden, are to “investigate the facts and circumstances provided by the inmate” and are to gather relevant documents for the Warden’s review. This committee gathers the following information:

  • A description of the “physical and mental condition” of the spouse or partner. This shall extend to before incarceration and during incarceration.
  • Proof that “the inmate is the only family member caregiver capable of caring for the spouse or registered partner.” Information on who has been caring for the spouse or partner will also be gathered.
  • Documentation that the spouse or partner is supportive of the inmate’s compassionate release for the purposes of being their caregiver.
9. In addition to the traditional factors considered in a compassionate release request, what specialized factors are assessed when it comes to incapacitation of spouse or partner petitions?

The following factors are taken into consideration for this category of compassionate relief:

  • History of violence
  • History of public medical and financial assistance
  • Any history of domestic violence
  • Whether the inmate lived with spouse or partner prior to incarceration
  • Whether drugs, paraphernalia, guns, or dangerous substances are in the home
  • Degree of contact with and responsibility for spouse or partner
  • Evidence of spousal abuse or neglect
  • Evidence of custodial skills
  • Outstanding financial obligations
  • Detainers
  • Work history
  • Classes taken in prison
10. What is the likelihood of relief being granted?

This category of compassionate release is the least likely to succeed. As discussed on our Compassionate Release Statistics page, 3,059 compassionate release petitions were filed between 2014 and 2018. Only 109 were for the incapacitation of spouse or partner category. Of those, 15 were referred to the Director. While the number of grants in this period is not known, only a total of 306 requests were approved by the Director, while 2,405 compassionate release requests were denied for all categories. The remaining petitions were not decided during the period or the inmates died before a decision could be rendered.

11. Considering the very low likelihood of success, what should I do if I find myself in this situation?

Because it is challenging to prevail on an incapacitation of spouse or partner compassionate release request, it is essential to provide a professional and polished submission, containing all required supporting documentation, the first time around. One way to ensure that this is accomplished is by retaining a compassionate release attorney.

The Law Offices of Brandon Sample has a proven track record of compassionate release success. We can conduct an in-depth investigation into your personal circumstances, obtain all required supporting documentation, draft the petition itself, and submit the packet to your Warden. We can also monitor the petition’s progress and apply pressure where appropriate to give your request the best possible chance at a favorable outcome. Contact us today to get started.

If these Incapacitation of Spouse or Partner Compassionate Release FAQs haven’t answered all of your questions, or if you would like to hire an attorney, call us at 802-444-4357.

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