Compassionate Release: Terminal Medical Condition

Pursuant to 18 U.S.C. § 3582(c)(1)(A), federal prisoners may be granted compassionate release for certain extraordinary and compelling reasons. The United States Sentencing Commission established guidelines to assist in determining when such circumstances exist, and the Bureau of Prisons has promulgated policy in order to implement the law. One such category is terminal medical condition compassionate release.

Terminal Medical Condition Compassionate Release Criteria

Terminal medical conditions top the list of extraordinary and compelling reasons for compassionate release. According to the Sentencing Guidelines, a terminal illness is “a serious and advanced illness with an end of life terminal medical condition compassionate releasetrajectory.” The Guidelines further specify that “[a] specific prognosis of life expectancy (i.e., a probability of death within a specified time period) is not required.” Specific examples given include metastatic solid tumor, ALS, end-stage organ disease, and advanced dementia.

Despite these guidelines, the Bureau of Prisons requires a defined life expectancy of 18 months or less in order to qualify as a terminal illness. In addition, the BOP’s considerations include “assessment of the primary (terminal) disease, prognosis, impact of other serious medical conditions of the inmate, and degree of functional impairment (if any).” While an actual functional impairment (i.e., inability to feed or dress oneself) is not required, the Bureau may consider functional impairment when considering the prisoner’s ability or inability to reoffend.

Factors Considered in Warden’s Review of Petition

As with all requests for compassionate release, the Bureau will consider specific factors when making a decision on an application. These factors include the prisoner’s criminal history, the nature and circumstances of the current offense, the length of time served and time remaining, supervised release violations, and unresolved detainers. The Bureau will also evaluate the prisoner’s personal history, age (current and at the time of offense) and institutional adjustment, including disciplinary infractions.

According to the Bureau’s policy statement, Program Statement 5050.49, Compassionate Release/Reduction in Sentence, these factors are “neither exclusive nor weighted.” Instead, they are meant to aid in assessing whether the compassionate release application presents “particularly extraordinary and compelling circumstances.” Note that the word “particularly” is misplaced here; 18 U.S.C. § 3528(c)(1)(A) does not require particularly extraordinary and compelling circumstances. While the Bureau has proposed changes to this policy statement, which would include elimination of the word “particularly,” the policy remains in its March 25, 2015 iteration.

Process of Approval

As with all other requests for compassionate release, the inmate first submits their request directly to their prison’s Warden. The Warden will then follow the above guidelines in determining if the petition should be approved or denied. For terminal medical conditions, the Warden will solicit the input and recommendation from the institution’s Clinical Director, but the Warden, who has substantial discretion, is the final decision maker at the local level. This is the same process for all compassionate release petitions.

If recommended for approval, the Warden forwards the petition to Central Office, where the Office of General Counsel takes over. For terminal medical condition reduction in sentence requests, the petition is sent to the Medical Director for a review and recommendation. The General Counsel then offers his or her own recommendation before sending the petition to the Director of the Bureau of Prisons for a final decision.

If the Director approves the compassionate release petition, then the petition is forwarded to the U.S. Attorney for the inmate’s sentencing court for consideration. A U.S. District Court judge makes the final decision. Most petitions that make it this far are granted and the BOP releases the prisoner as soon as travel and community medical arrangements can be made.

Compassionate Release: By the Numbers

According to BOP data on compassionate release, Wardens received 817 applications for compassionate release based on a terminal medical illness between 2014 and 2018. While more applications were submitted for other categories, the Warden approval rate for terminal conditions was the highest, with 405 of 817 receiving approval. It is not clear how many of the Warden-approved terminal medical conditions were approved by the Director of the Bureau of Prisons. Given the Director’s approval of 306 out of 2,711 total applications, however, it is clear that many terminal illness compassionate release applications were denied by the Bureau in the 2014 to 2018 period.

Retaining Competent Counsel

While inmates and their families can draft and submit compassionate release petitions on their own at no cost, we at the Law Offices of Brandon Sample strongly suggest that you retain competent counsel when pursuing a reduction in sentence. When retained for a compassionate release application, we conduct an in-depth review of your personal and medical situations, determine under what category of compassionate release you qualify, draft a request which shows the Bureau that relief should be granted, and troubleshoot as problems arise. Our experience is invaluable when a loved one’s life is on the line.

If you would prefer to file a compassionate release petition on your own, we’ve drafted a sample petition for an inmate with a terminal medical condition. While this is based on a fictional inmate, it can help show how such petitions should be presented.

To learn more about the terminal medical condition category of compassionate release or to hire an attorney, please call 802-444-4357.

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