This story is about compassionate release, COVID-19, and one effort to raise a pro bono army to release vulnerable prisoners. It is also about how the effort to free these prisoners has revealed deep fissures in our criminal justice system. This story is, above all, about what must be done to rescue the people who have fallen into these fissures and begin to heal our broken system.
Those of us who work on the Compassionate Release Clearinghouse COVID-19 Project have learned a great deal in the months since our first organizing meeting in late March 2020. We came together to identify at-risk prisoners and recruit, train, and support the pro bono lawyers working on their behalf. We knew vulnerable prisoners could not depend on the federal Bureau of Prisons (BOP) for help. Throughout the pandemic, the BOP has tenaciously fought the release of prisoners known to be vulnerable to serious illness or death were they to contract COVID-19. It has failed to identify those with underlying conditions and hasten their release from custody. Indeed, after the attorney general ordered the release of low-risk prisoners to home confinement, the BOP’s response was inadequate and chaotic. Josh Gerstein, Virus-Wracked Federal Prisons Again Expand Release Criteria, Politico (Apr. 11, 2020). Represented by federal prosecutors, BOP appeared in court repeatedly to fight prisoners’ compassionate release motions, even in the most dire cases. Neena Satija, “Come On, We’re Human Beings”: Judges Question Responses to Coronavirus Pandemic in Federal Prisons, Wash. Post (May 1, 2020).
By the middle of September 2020, at least 14,286 federal prisoners had tested positive for COVID-19 and 129 had succumbed in the pandemic. Federal Bureau of Prisons, Covid-19 Cases. The majority were elderly and suffered from underlying medical conditions recognized by the Centers for Disease Control and Prevention (CDC) as risk factors. Prisoners of color, already overrepresented in our prisons, died at higher rates than their proportion of the prison population.
The shocking rates of infection and death in federal prisons have revealed much about whom and how we incarcerate. We are reminded that because courts are forbidden to revisit finalized sentences, except in a few narrow circumstances, thousands are left to grow old, become debilitated, or die in prison. Our criminal justice system’s addiction to retribution and finality also leaves behind thousands of prisoners sentenced to terms that could not be imposed today. They are abandoned to complete sentences that no longer hold any meaning for them or for us. Meanwhile, 30 years of unjust sentencing policies have resulted in prisons so crowded that they are incubators of the virus.
All of this was on stark display starting in the spring of 2020.
I am beginning my 20th year working at FAMM, and from my earliest days on the job, I heard from federal prisoners and their loved ones struggling to secure compassionate release. People contacted us desperate for information or help. Sick and dying prisoners’ appeals to BOP staff for information encountered walls of silence, ignorance, misinformation, indifference, and cruelty. People died because the BOP ignored, lost, or denied their requests.
I quickly learned that the BOP ran the table when it came to compassionate release. No one, no matter how debilitated or close to death, could hope to return home if the BOP did not approve.
Over the years, FAMM, the ABA, and a host of other organizations worked to change the BOP’s control of compassionate release. However, the agency clung tightly to its control. We came to understand that the only way sick, vulnerable, and dying prisoners could hope to secure compassionate release would be to somehow loosen BOP’s grip.
In the Sentencing Reform Act of 1984 (SRA), Congress eliminated parole, slashed the award of good time credits, introduced determinate sentencing, and strictly constrained federal courts from revisiting sentences once finalized. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, tit. II, 98 Stat. 1987, 1987–88. The SRA elevated retribution and finality in sentencing over rehabilitation. However, it also included several “safety valves,” authorizing federal courts to revisit and consider reducing sentences in a few specific situations. 18 U.S.C. § 3582(c). One such situation is when the prisoner demonstrates “extraordinary and compelling reasons” warranting early release. This avenue came to be known colloquially as “compassionate release.” Congress divided responsibility among three actors:
The last assignment was the most crucial. Even a prisoner identified by the BOP as presenting extraordinary and compelling reasons might not be suited for early release. Perhaps, for example, the prisoner would pose an ongoing risk to public safety. Congress committed the decision whether to reduce the sentence of a prisoner who met the Sentencing Commission criteria to the sentencing court. That made sense. The judge had already carefully considered the prisoner and the offense and imposed a sentence in light of the § 3553(a) factors, including severity of the offense, impact of release on the community, and the history and characteristics of the defendant. Who better to evaluate whether to release a prisoner due to serious or life-threatening illness?
Sadly, compassionate release was flawed from the very beginning. Three reasons account for this failure.
Delays, design flaws, and BOP intransigence doomed the program. The numbers bear this out. A scathing audit released in 2013 by the inspector general of the Department of Justice (IG) found that despite a rapidly rising federal prison population, only an average of 24 people each year received compassionate release between 2001 and 2011. The IG laid the blame on inefficiency, mismanagement, and inconsistent application of the program by the BOP. Off. of the Inspector Gen., U.S. Dep’t of Just., The Federal Bureau of Prisons’ Compassionate Release Program (Apr. 2013).
Although we welcomed the IG report, FAMM and others in the advocacy community believed more than flawed execution was at play. Instead, we concluded that the BOP was ill-suited to simultaneously jail prisoners and take responsibility for advancing their early release. Human Rights Watch & FAMM, The Answer Is No: Too Little Compassionate Release in U.S. Federal Prisons, 3-4 (Nov. 2012).
The BOP expanded compassionate release modestly in response to the IG’s critique. Compassionate release grants jumped to 83 between August 2013 and September 2014. Those numbers, while somewhat encouraging, masked serious problems with BOP control over compassionate release.
The Sentencing Commission, which had finally gotten around to publishing a compassionate release program statement in 2007, decided to amend it in 2016. USSG § 1B1.13, Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A)(Policy Statement).
In late 2016, the Commission issued new guidance to courts, expanding the grounds for compassionate release and, remarkably, using the program statement to wag its finger at the BOP usurpation of judicial authority:
A reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission encourages the Director of the Bureau of Prisons to file such a motion if the defendant meets any of the circumstances set forth in Application Note 1. The court is in a unique position to determine whether the circumstances warrant a reduction (and, if so, the amount of reduction), after considering the factors set forth in 18 U.S.C. § 3553(a) and the criteria set forth in this policy statement, such as the defendant’s medical condition, the defendant’s family circumstances, and whether the defendant is a danger to the safety of any other person or to the community.
Id., cmt. n.4 (emphasis added).
The following year, a bipartisan group of senators asked the BOP whether it had increased its compassionate release motions in light of the 2013 IG report and the Commission’s amended compassionate release guideline. Letter from Brian Schatz, et al. to Dr. Thomas Kane & Hon. J. Roderick Rosenstein (Aug. 3, 2017).
Five months later, the DOJ Office of Legislative Affairs answered. It explained that in the four years since January 2014, the BOP Central Office had denied 2,405 compassionate release requests and approved only 306. Tellingly, the BOP had made no changes, nor apparently anticipated any, to its compassionate release criteria, notwithstanding the IG’s audit or the Commission’s actions. Letter from Stephen E. Boyd to the Hon. Brian Schatz (Jan. 16, 2018).
The senators had heard enough. One month after receiving the DOJ’s response, a bipartisan group led by Sens. Schatz (D-HI) and Mike Lee (R-UT) introduced the GRACE Act. S-247, 115th Congress (2018). It included many of the reforms FAMM and others had promoted over the years. It expanded compassionate release criteria, imposed time limits on BOP consideration of requests, required family notification and visitation in cases of terminal illness, and ordered annual data reporting. Most importantly, it gave prisoners the right to file a motion in federal court after the lapse of 30 days from the warden’s receipt of a prisoner’s request or after the prisoner had exhausted BOP administrative remedies, whichever was earlier.
The GRACE Act became law on December 21, 2018, when President Donald Trump signed the First Step Act of 2018. The GRACE Act transformed compassionate release for federal prisoners from a program trapped in a BOP chokehold to one that prisoners could engage. FAMM, Compassionate Release in the First Step Act: Then and Now (Jan. 2019).
At FAMM, we were thrilled by this victory. Little did we know that the GRACE Act would become a lifeline when the pandemic struck federal prisons a little more than a year later.
It is one thing to pass good laws and quite another to make them work. To ensure the compassionate release reform in the First Step Act lived up to its promise, FAMM set out to find dying, debilitated, and aged prisoners who met compassionate release criteria. On March 7, 2019, we sent a message to our 40,000 members in federal prison and their loved ones on the outside. We included a description of the new law, explained who might be eligible, and asked our correspondents to fill out a simple survey.
Then, with the help of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and the National Association of Criminal Defense Lawyers, we launched the Compassionate Release Clearinghouse. We would recruit, train, and support pro bono lawyers to represent federal prisoners whose compassionate release requests had been denied or ignored by the BOP.
Hundreds of people in prison wrote back. A few days after writing to our incarcerated members, we received an email from one of them, a man who came to call himself Patient/Helper (P/H), about a man named Bobbie Smith:
I am writing this from the “Cancer” floor of FMC Butner. I am not terminal at this time. This is directed at the situation of another patient. He is terminal and is unable to contact you directly. His family is having difficulties in that regard as well, but hopefully both of these communications will reach you. I did get him to answer the questions listed in your Compassionate Release Clearinghouse and here they are. . . .
(Patient/Helper remains in prison and could risk retaliation or punishment for the lifesaving work he is doing should he be publicly identified. This account is taken from our correspondence, phone calls, and one meeting late last year at Butner Federal Medical Center.)
P/H had learned of Mr. Smith when the latter had been overheard crying on the telephone, explaining to his family that the BOP had denied his request for compassionate release. The BOP had informed Mr. Smith that while he would die within 12 months (thus meeting compassionate release criteria), it wasn’t going to file a compassionate release motion on his behalf. “[D]ue to the serious nature of his offense, his release at this time would minimize the seriousness of his offense and because he remains a risk to the safety of the community.”
Mr. Smith was serving a sentence for drug distribution, with a 2030 release date. Mr. Smith had lung cancer. He was extremely emaciated, in constant pain, unable to leave his bed, and dependent on a feeding tube because he had lost the ability to swallow. He had been told he was going to be moved to the Butner hospice ward. If left to the mercy of the BOP, he would never leave prison.
Prior to passage of the First Step Act, the BOP’s denial would have been the end of the line. Instead, nine days after receiving P/H’s email, we placed Mr. Smith’s case with the federal public defender. Things began to move quickly.
In mid-April, shortly after the federal defender filed a compassionate release motion, she learned Mr. Smith had been moved to an outside hospital because his lungs collapsed. No one in the family or the lawyer could learn more. Fearing the worst, his lawyer filed an emergency motion the day after Mr. Smith’s transfer. Although Mr. Smith was hospitalized, incapacitated, and very near death, the government opposed his release. The court acted swiftly, ordering the BOP to provide an accounting of Mr. Smith’s medical situation by 4:30 p.m. the following day, April 18.
The BOP blew the deadline. Undeterred, the judge ordered the parties into court and learned that the BOP had refused Mr. Smith’s lawyer any information about her client’s condition. Right there and then, the judge called the prison and spoke with Mr. Smith’s doctor. He learned that the BOP had authorized hospice care for Mr. Smith. Following that conversation, he ordered Mr. Smith’s release as soon as medically appropriate transport could be arranged. Mr. Smith was welcomed home a few days later by his family.
The Bobbie Smith case confirmed much we had suspected. First, if judges have the opportunity to consider compassionate release motions from prisoners denied by the BOP, they might reduce sentences for dying, debilitated, and aged prisoners whose release would not compromise public safety or minimize the seriousness of the offense. Second, prisoners should have trained counsel to represent them. That is because, in most cases—even the most dire cases like Mr. Smith’s—the USA will oppose a reduction in sentence. Without counsel, prisoners filing pro se could lose and make bad law. Third, it is essential to find and support the most vulnerable prisoners. Doing so requires creativity and commitment.
We learned something else: P/H told us that the work of the Compassionate Release Clearinghouse and our success at finding and freeing sick, aged, and dying prisoners brought hope and dignity to a hopeless place.
Over the year following Bobbie Smith’s release, the Clearinghouse recruited more than 100 lawyers from 25 law firms and placed nearly 100 cases with federal defenders and pro bono lawyers. We worked with prisoners, their loved ones, and their lawyers to ensure that when a case made it to court, all the information the judge would need was at hand. We secured medical records, combed dockets for information, contacted family members and loved ones, and worked to keep them and the clients informed. We worked with lawyers to fine-tune mitigation and medical arguments and secure release plans. Clearinghouse lawyers enjoyed a success rate of better than 90 percent. They secured the release of 40 prisoners, most terminally ill, whose requests the BOP had neglected or denied. They had convictions for drug trafficking and fraud, but also for gun crimes, armed robbery, and child pornography. We celebrated every homecoming and mourned every death.
When COVID-19 began to spread through the nation and through the prisons, we determined to kick the Clearinghouse into high gear. What had been a mission to make a new, good law work and restore aged, debilitated, and dying prisoners to their loved ones became a mission to save lives. What we did not know was whether judges would use their discretion under the First Step Act to release at-risk prisoners. We had to try.
At the onset of COVID-19, the CDC identified a set of risk factors, underlying conditions that made an individual more vulnerable to serious illness or death should they contract the virus. C. for Disease Control & Prevention, People Who Are at Higher Risk for Severe Illness.
The CDC advised everyone, especially people in these risk categories, to maintain six feet of physical distance, practice routine handwashing and surface disinfecting, and wear and routinely replace facemasks and gloves.
Prisoners were clearly at great risk.
From our work over the years on compassionate release, we know that many people enter the system with chronic medical conditions and that medical treatment in prison, at best, is not comprehensive, and at worst, borders on malpractice. Many likely fit the CDC high-risk criteria and were unable to protect themselves from contracting the virus.
Moreover, prisoners in the federal system are unable to follow the simple, lifesaving guidance from the CDC. One lawsuit outlined the problems they encounter:
People housed at Butner—a complex that is well over capacity—are packed into crowded dormitories, small cells, and narrow hallways. They cannot physically distance themselves from others or self-quarantine. They cannot ensure that others are effectively quarantined if they are infected. Instead, they must sleep within a few feet of one another—often in small cubicles—use communal bath facilities, and line up close to one another several times a day for food and medicine. Butner’s health care system is grossly inadequate to treat the growing number of sick men. The Federal Bureau of Prisons (BOP) has inadequate infection surveillance, testing, quarantine, and isolation practices, further exacerbating the crisis. What is more, people with pre-existing medical conditions often do not receive the treatment needed for their underlying conditions, presumably, because the prison’s medical resources are over-taxed.
Petition for Writ of Habeas Corpus, Hallinan v. Scarantino, No. 5:2020hc02088, (E.D.N.C. May 26, 2020).
As a result, the infection rate in federal prison facilities skyrocketed to five times higher than that on the outside. Fed. Pub. Defenders, S.D. N.Y., BOP-Reported Positive Tests for COVID-19 Nationwide.
We became alarmed. The Compassionate Release Clearinghouse, joined by the Federal Public Defenders, determined to raise an army. First, we had to find vulnerable prisoners in need of counsel. On March 23, FAMM again wrote to its 40,000-strong federal prison membership and to their families and loved ones on the outside. We provided the CDC list of underlying conditions, advised prisoners with risk factors to begin the compassionate release application process, and urged them to write back to us with answers to a short set of questions if they believed they met CDC criteria and needed counsel to assist them in filing for compassionate release.
By mid-September, we had received responses from 5,500 people. Intake teams at FAMM and a remarkable group of 60 paralegals from the law firm of Sidley & Austin reviewed and screened responses and completed intake forms.
Next, we had to find the lawyers. The Washington Lawyers’ Committee led a recruitment drive that initially identified 35 law firms ready to take cases. By September, that number had grown to more than 218 law firms, law schools, and organizations who contributed more than 637 lawyers to the effort. Meanwhile the Federal Public Defender Sentencing Resource Counsel reached out to every Federal Public Defender in the country to determine which offices could take compassionate release referrals from the Clearinghouse. The Defenders would end up taking on two-thirds of Clearinghouse-identified potential compassionate release cases.
Then, we had to train and support all those lawyers. The Clearinghouse put together a short training video, and supplemented it with a step-by-step guide covering everything from the laws and regulations governing compassionate release to how to quickly secure medical records. We filled our website with resource materials, including medical, legal, and release-planning support. In addition, the Clearinghouse built a deep bench of pro bono advisors, including on-call legal resource counsel: skilled federal practitioners with a deep understanding of compassionate release practice. A team of social workers donated their time to assist pro bono counsel and families with release planning, identifying housing for difficult-to-place individuals, and securing income and health insurance coverage. A group of volunteer doctors kept busy helping lawyers understand and interpret medical records. We informed volunteers of new developments through weekly emails and weekly webinars, which covered topics of common interest, including how to manage procedural hurdles and conduct reentry planning.
The Compassionate Release Clearinghouse COVID-19 Project was up and running and assigning its first cases a mere 11 days after our first meeting. By the first week of June, we had assigned 1,000 cases. By mid-September, that had grown to 1,540.
One of our biggest concerns was whether the judiciary would agree that prisoners with CDC-recognized COVID-19 risk factors met the compassionate release criteria contained in USSG § 1B1.13. The issue was complicated by the fact that the Sentencing Commission lacked a quorum and had not updated § 1B1.13 to reflect the changes made to the compassionate release statute by the First Step Act. In many cases, the government challenged compassionate release motions on grounds that prisoners had not met threshold procedural requirements of waiting 30 days after requesting a compassionate release referral from the warden. Sometimes prosecutors insisted that prisoners who had asked the BOP for compassionate release before the pandemic, but had filed their motion after the pandemic hit and cited their vulnerability, go back to the BOP to refile based on their COVID-19 concerns, and wait another 30 days. In other, early cases, the BOP and DOJ opposed prisoners’ motions, arguing that the Sentencing Commission policy statement did not cover those seeking release based on their vulnerability to COVID-19.
However, by early June, well before most of the Clearinghouse cases had been decided, it became clear that the judiciary by and large shared our view and our urgency. In a budget letter to Congress, the Judicial Conference of the United States asked that any emergency legislation include a suspension of the 30-day waiting period to speed the process. Letter from James W. Lungstrum to Hon. Nita Lowey et al., Enclosure 2 at 2 (Apr. 28, 2020).
Though many compassionate release motions were initially denied for failure to exhaust administrative requirements, and others because the court did not agree that vulnerability to COVID-19 constituted grounds for compassionate release, many courts exercised their discretion to release at-risk prisoners. From January 2019 to the end of February 2020, judges had approved 166 compassionate release motions. By the middle of September, an additional 1,434 prisoners had received compassionate release. Fed. Bureau of Prisons, First Step Act.
Meanwhile, daily reports on the BOP website tracked the rapidly growing number of confirmed cases and deaths among prisoners and staff. Fed. Bureau of Prisons, COVID-19 Coronavirus, COVID-19 Cases.
By mid-May, the Department of Justice had recognized the threat faced by prisoners. It issued new guidance to all US Attorney Offices responding to compassionate release motions. The guidance conceded that any prisoner suffering from documented chronic conditions associated with severe illness should they contract COVID-19 met compassionate release criteria under USSG § 1B1.13 and was eligible for compassionate release. Wise v. United States, No. CR ELH-18-72, 2020 WL 2614816, at *7 (D. Md. May 22, 2020).
The Commission’s policy statement at § 1B1.13 provided for compassionate release in certain circumstances. One was in the case of an individual suffering from a serious physical condition that “substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.” The DOJ guidance reasoned that because prisoners with CDC-recognized underlying conditions that put them at risk of serious complications could not take measures to protect themselves from the virus, their medical condition substantially diminished their ability to care for themselves in prison.
Of course, conceding that COVID-19 vulnerability met compassionate release criteria did not always translate into supporting compassionate release motions. Prosecutors continued to oppose them in cases of individuals they believed did not deserve to be released. Still in all, it was a remarkable concession.
The Compassionate Release Clearinghouse COVID-19 Project has been just one of many efforts to free vulnerable federal prisoners using compassionate release. The federal criminal justice system has overseen the return of hundreds of sick, elderly, and medically vulnerable people to their communities, largely without incident. Their release involved a massive lifesaving mobilization of the bar and depended on the willingness of the courts and, to some extent, even the DOJ to expand the understanding of what constitutes extraordinary and compelling circumstances.
The pandemic has revealed to us the human legacy of a criminal justice system that turned in the 1980s to policies based on retribution. Every one of the individuals who received compassionate release had months or years left to serve on their sentences with no hope of early release. They were freed, but left behind thousands like them: people in their 70s, 80s, even 90s, many serving sentences that can no longer be imposed due to changes in sentencing law. They included the sick and dying, and thousands of prisoners simply marking time. The fact that our justice system abandons prisoners to serve out excessive sentences that were the norm for the past three decades but have long since outlived their usefulness is evidence of a virus more corrosive than COVID-19.
COVID-19 has especially affected prisoners of color. Black men comprise 6 percent of the US adult population but are approximately 35 percent of the prison population and are incarcerated at a rate six times that of white males. Sonja & Rehavi, Racial Disparity in Federal Criminal Sentences, J. Pol. Econ. 122, no. 6 (2014): 1320-54. Today, Blacks represent 38.4 percent of the federal prison population and have suffered the brunt of excessive and racially disparate policing, prosecution, and sentencing policies and practices. The killing of George Floyd and the police response to the outrage that followed occurred in the midst of the pandemic. The shocking display of murderous force and the failure of the law enforcement community to come to terms with racial brutality was on full display. People took to the streets to call on lawmakers and the nation to examine the impact of racism in our criminal justice system. Meanwhile, one tragic consequence of systemic racism is that people of color, and Black men in particular, die at drastically greater rates than their white counterparts from COVID-19. Tiffany Ford, Race Gaps in COVID-19 Deaths Are Even Bigger Than They Appear, The Brookings Institute, June 16, 2020.
It should not take an emergency to recognize that our prisons are filled with people who may no longer need to be there. If we take anything from the deaths of 129 prisoners and the rescue operations that saved others, it should be to recognize that all the people we incarcerate, not merely the sick and dying, deserve a second look—an opportunity to return to court to make the case that the sentence imposed on them no longer meets the purposes of punishment.
The compassionate release reforms in the First Step Act show us that we can trust judges to exercise considered discretion to grant release when doing so does not threaten public safety and to deny when the individual does not deserve release.
Second Look legislation could help undo the damage done by the SRA when it eliminated parole and largely forbade judges the ability to regain jurisdiction over a finalized conviction and sentence. If we have begun to turn our backs on the excessive sentences of the past, we must do all we can to leave no one behind. If we really mean to grapple with a justice system that disadvantages people of color, whose rates of incarceration and death exceed those of white people, we need to look back as well as forward to undo racial disparity. We should not tolerate the continued incarceration of those elders who pose no threat to offend but who live in prisons ill-equipped to meet their needs.
Rescue operations like the Compassionate Release Clearinghouse can be exciting. Changing laws and policies is tough and takes a long time. But, as long as people are serving sentences we no longer believe serve the ends of justice, we have time to work on this.
Patient/Helper, the prisoner at Butner who alerted us to Mr. Smith’s plight, quickly won the admiration of the Clearinghouse team. He helped keep Mr. Smith and his family connected and informed. He also kept us apprised of developments and gently and firmly urged us to advance Mr. Smith’s case.
Over the year he was at the Federal Medical Center, P/H would go on to alert us to many prisoners at risk of dying. He helped them to sign releases, secure medical records, and communicate with their lawyers and us. He helped them to the phone or the computer and, if they could not communicate on their own, he did so for them.
He is an intelligent and a thoughtful strategist who does this work out of a higher calling. He refused money, even to pay for the per-minute federal prison email system, and he followed up conscientiously on each and every person with whom he worked. He was responsible for the release of at least 20 terminally ill prisoners. We at FAMM consider him a valued colleague and a friend.
It is unlikely P/H himself will ever leave prison. He is serving a 177-year sentence for a series of armed bank robberies committed more than 30 years ago. He caused no one physical harm and deeply regrets the choices he made as a young man. He struggles to reconcile the person he was then with his expectations of himself now. His sentence was built almost entirely on a series of stacked gun charges; multiple mandatory minimum sentences of 25 years imposed, by law, consecutively, in the same criminal proceeding. The First Step Act did away with stacked gun charges, and P/H is one of those people who could receive a much lower sentence were he before the court today.
Absent Second Look authority, however, a judge may never have the opportunity to recognize and consider releasing this remarkable individual.
