In refusing to petition courts on behalf of prisoners who should be considered for what's known as "compassionate release," the federal Bureau of Prisons (BOP) is usurping the decision-making power of judges, argues a recent report released by Human Rights Watch (HRW).

When it passed the Sentencing Reform Act (SRA) in 1984–which eliminated parole and instituted determinate sentencing, but also included so-called "safety valves" to allow for reductions in unjust or unfair sentences–Congress "intended the sentencing judge, not the BOP, to determine whether a prisoner should receive a sentence reduction," says the November 2012 report, co-authored by HRW and Families Against Mandatory Minimums.

Judges are to consider "extraordinary and compelling" circumstances, according to the U.S. Sentencing Commission (USSC), that merit a prisoner's release, such as a terminal illness, incapacitation, or the death of a prisoner's spouse that would force his or her children into foster care.

But prisoners cannot seek compassionate release on their own. Only BOP–which incarcerates more than 218,000 prisoners–has the authority to petition a court for such consideration. According to the federal government's General Accounting Office, BOP does so "infrequently."

Since 1992, in fact, while BOP's population has increased threefold, compassionate releases have remained stagnant, averaging less than two-dozen each year.

"I urged more release for older, chronically ill offenders who couldn't fight their way out of a paper sack, but (BOP) Central Office was simply not interested," retired BOP official Joe Bogan told HRW for the report, which includes more than five-dozen interviews with current and former BOP officials, federal prisoners, family members, lawyers and advocates.

In all of 2011, BOP filed only 30 sentence reduction petitions. BOP had filed 37 such petitions in 2012 as of the report's release. In both years, only petitions based on medical grounds–most of those being for terminally-ill prisoners–were filed.

"[W]hen reviewing prisoner requests for compassionate release, the BOP makes decisions based on the very factors that Congress directed the courts to consider," the report says. "For example, the BOP determines whether an otherwise deserving prisoner might re-offend, how a victim or the community might react to early release, and whether the prisoner has been punished enough."

The report argues that BOP cannot make such independent and impartial determinations because BOP "is a component of the (Department of Justice), directed and supervised by the deputy attorney general." And in spite of what DOJ has acknowledged is an unsustainable $6.2 billion BOP budget and an expanding prison population, it continues to ignore even the most fundamental human rights principles.

"In recent years," the report says, "(DOJ) has taken policy positions averse to any but the most restrictive interpretation of compassionate release, favoring finality of sentences over sentence reductions for extraordinary and compelling reasons."

The report recommends that BOP "reconceptualizes its view of compassionate release" petitions, so that it does so objectively and independently of DOJ and in accordance with USSC guidelines.

The report also recommends that, until Congress enacts amendments to the SRA that explicitly grant prisoners themselves the right to petition for sentence reduction, no DOJ official should "object to bringing compassionate release motions on grounds of public safety, sufficiency of punishment, or other considerations that belong within the courts' purview."

"Keeping a prisoner behind bars when it no longer meaningfully serves any legitimate purpose," the report's authors conclude, "cannot be squared with human dignity and may be cruel as well as senseless."

Source: "The Answer is No: Too Little Compassionate Release in U.S. Federal Prisons," Joint Report by Human Rights Watch and Families Against Mandatory Minimums, November 2012; www.hrw.org

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