Prison-Release Program Debated in Hearing

WASHINGTON (CN) - The compassionate release system for federal prisons is "broken," a series of government witnesses, advocates and stakeholders told the U.S. Sentencing Commission at a public hearing Wednesday.

But while the panels of witnesses generally agreed the program is in need of a fix, they proposed starkly different solutions and laid the blame at the feet of a number of different organizations and agencies.

The compassionate release program is meant to release elderly inmates, those with terminal illnesses and others who meet certain conditions, though as the witnesses at Wednesday's hearing said, the program does not necessarily cover all of the inmates in federal prison it is meant to.

Wednesday's public hearing in a small conference room in the Thurgood Marshall Federal Judiciary Building in downtown Washington, D.C., was meant to evaluate a proposed set of changes to the compassionate release program, including lowering the age at which an inmate can be considered for release, reducing the amount of their prison term they must serve before qualifying for release, and adding more circumstances that would allow an inmate to go free early.

The current program allows the director of the Bureau of Prisons (BOP) to motion for the early release of inmates deemed not a danger to their communities who are least 70 years old and have served at least 30 years of their sentence, or those who have "extraordinary and compelling reasons."

Under the current rule "extraordinary and compelling reasons" are limited to debilitating or terminal physical or mental illnesses or a death in the inmate's family that would leave a minor without care.

The proposed amendment to the program expands these circumstances further and would allow the BOP director to motion for the release of a prisoner who is 65 or older and has served at least 10 years or 75 percent of their sentence, regardless of their medical condition.

The 10 year requirement drew some criticism from the witnesses, especially Michael Horowitz, inspector general for the U.S. Department of Justice, who suggested the 10-year requirement might have unintended consequences.

Horowitz estimated the requirement that inmates serve at least 10 years of their sentence before being considered for compassionate release cuts out half of the inmates who could benefit from the program. This includes elderly inmates sentenced to relatively short times in prison, who are arguably the safest prisoners to release into the community, Horowitz said.

The commission seemed to agree with Horowitz and his suggestion to simply eliminate the 10-year requirement and keep the guidelines requiring inmates serve at least 75 percent of their given sentences.

"Where's the science behind the 10 years?" Judge Charles Breyer, vice chair of the commission, asked. "I don't see it, I'm unaware of it, but is there something that the Justice Department or the Bureau of Prisons have figured out that 10 years? Because it looks to me that all they're saying is we want to make sure that somebody receives an adequate punishment."

The involvement of the BOP director was another point of contention at Wednesday's hearing, as witnesses offered competing views of who should be in the driver's seat of the compassionate release program.

Jonathan Wroblewski, principal deputy assistant attorney general for the Justice Department, told the six-member sentencing commission that the BOP is in charge of the compassionate release program, and suggested the commission and courts take on an advisory role.

"No administration has ever felt bound by the commission's guidelines," Wroblewski told the commission when asked about the bureau's role in the program. "The commission's guideline as we read the statute is to guide courts once the motion is filed. The government's responsibility is laid out in the statute and it says that the director of the Bureau of Prisons may - not must - file a motion if there are extraordinary and compelling reasons."

Instead of the sentencing commission taking control of the program and giving the courts clear instructions on how to act, Wroblewski suggested the commission bring their guidelines into line with the BOP's initiatives so as to prevent "competing policies."

But others at the hearing, including members of the commission, pushed back against this reading of the statute.

"I just would like to know we're not nullified by the department's feedback. I'm not totally sure what the department feels our function would be if you get to set the rules, if you get to do whatever you want," Commissioner Rachel Barkow asked Wroblewski. "I guess I don't really understand where there's any effect to the commission's role in the statute under the department's reading."

Margaret Love, a non-voting member of the Practitioners Advisory Group, stood in stark contrast to Wroblewski's executive-centric policy proposal, arguing that Congress intended the U.S. Sentencing Commission to lead the program, with the courts taking a major role and the BOP being relegated to the "gate-keeping" role of applying the guidelines to specific cases.

"The upshot is that what Congress intended as a judicially administered safety valve, a word that appears three to four times in the legislative history, is instead controlled by a federal agency in charge of prosecutions, which brings defendants back to court only when they are at death's door," Love told the commission.

She urged the commission to develop a clear policy to lead the BOP and suggested an addition to the proposed amendment that would require the BOP director to make a motion for release of an inmate under the compassionate release program if they meet all qualifications, instead of the voluntary system in place now.

"They have to lead, and they have to make policy that is very clear, clear and precise, precise enough to hold the Justice Department accountable," Love said in an interview after her testimony. "It can't be fuzzy because then maybe the policy doesn't fit in this particular case."

The Justice Department's position at the hearing - claiming to hold more power than the sentencing commission - is a standard refrain from the agency, Love said, pointing to a 2007 letter playing down the commission's authority.

"BOP has been, the Department of Justice has been used to playing all three of those roles and they don't like the idea that the sentencing commission might step up and play a more active, engaged role in setting policy," Love said.

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