New York Federal Criminal Practice Blog
March 27, 2009

Bureau of Prisons Compassionate Release Policy Continues to Stifle Early Release

Guest Contributor David Scott Johnson, Esq., writes:
As of the end of 2007, the Bureau of Prisons had rarely exercised its power to file a motion for a reduced sentence under the “compassionate release” procedures found in 18 U.S.C. § 3582(c)(1)(A), see here.  And, as is apparent in a recent decision by EDNY Judge Garaufis in United States v. Traynor, 2009 WL 368927 (E.D.N.Y. February 13, 2009), little has changed – despite the fact that the Sentencing Commission issued a new policy statement in November 2007 clarifying that the provision should encompass both medical and non-medical reasons, and circumstances beyond an inmate’s terminal illness. 


In 2005, defendant Traynor was sentenced to serve 120 months for committing bank robbery and attempted bank robbery.  Since the sentence was imposed, defendant’s health has deteriorated significantly and he is now being treated for asthma, epilepsy, headaches resulting from multiple bullet wounds and glaucoma.  Based on his health, defendant filed for a motion for reduced sentence under 18 U.S.C. § 3582(c).

“Extraordinary and Compelling Reasons”

Modification of an imposed term of imprisonment to permit early release may be granted to a prisoner in only three circumstances under 18 U.S.C. § 3582(c), the broadest of which – and the one at issue in Traynor – is where the reduction is both warranted by “extraordinary and compelling reasons” that are “consistent with applicable policy statements issued by the Sentencing Commission.”  In the 2007 amended policy statement, the Commission clarified that “extraordinary and compelling reasons” include not just situations where the inmate is terminally ill, but also where he/she “is suffering from a permanent physical or medical condition . . .  that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and for which conventional treatment promises no substantial improvement” – reasons that arguably include Traynor’s current circumstances.  The kicker is that any reduction on this ground must be precipitated by a motion from the Bureau of Prisons; it cannot be granted upon a motion of the defendant.  And as Judge Garaufis notes, “the Bureau of Prisons ‘has chosen to restrict the application of 18 U.S.C. § 3582(c)(1)(A) to inmates suffering from a serious medical condition that is generally terminal, with a determinate life expectancy.’”  In practice this means inmates that are literally at death’s door and have days or weeks to live.


Here, no such motion had been filed by the Bureau of Prisons, and Judge Garaufis accordingly concluded that he had no jurisdiction to grant any relief here, “even if Mr. Traynor's health is an ‘extraordinary and compelling reason’ warranting a reduction in his sentence.” 

JaneAnne Murray Adds:

Similar motions by inmates have been denied by other New York district courts over the past year, although the Second Circuit has not yet addressed the issue of the reviewability of the BOP’s failure to exercise its power to seek early release.  Given the cost of incarcerating inmates, especially ones that need constant and acute medical care, it is unfortunate that the Bureau of Prisons doesn’t choose to exercise its power to seek early release more often.  But it is hardly surprising.  The BOP is in the business of locking people up, and it prides itself on its ability to treat and accommodate all medical conditions and disabilities.  By establishing a compassionate release policy that rests solely within the BOP's discretion to apply, Congress has spun a lot of wheels to purely symbolic effect.  Perhaps, in the right case (probably not Traynor’s, whose health issues are not as compelling as some I have come across), a strong pitch can be made that the BOP’s failure to act is arbitrary and capricious.  At least Congress got it right in the Second Chance Act last year, in which it directed the BOP to implement a limited pilot program for the early release of elderly, non-violent prisoners - details of which are available here.  Experts estimate that fewer than 100 prisoners will qualify . . .

Lawyers: Matthew Traynor (pro se); AUSA Jeffrey Knox

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