TANYA WALTON PRATT, District Judge.
Shaunette Brooks' Motion to Reduce Sentence, dkt. 193, asks the Court to modify her sentence pursuant to 18 U.S.C. § 3582(c)(2) because she has serious medical needs that are not being met under her current conditions of imprisonment. For the reasons stated below, the Motion must be
Title 18 U.S.C. § 3582(c) makes clear that a court "may not modify a term of imprisonment once it has been imposed except" in limited circumstances. The provision Ms. Brooks has cited— § 3582(c)(2)—allows a court to modify a prison term that was based on a sentencing range that has subsequently been lowered by the U.S. Sentencing Commission. Ms. Brooks has not identified such a change to her sentencing range and the Court is not aware of any retroactive amendments that would allow such a reduction. Therefore, her motion to reduce sentence, dkt. [193], is denied on under this provisio.
A separate provision—§ 3582(c)(1)(A)(i)— allows a court to reduce a prison term if "extraordinary and compelling reasons warrant such a reduction." The prisoner's need for medical care is a factor that may be considered in weighing whether such a reduction is warranted. See 18 U.S.C. § 3553(a)(2)(D) (cited in § 3582(c)(1)(A)). However, this provision does not allow the Court to grant Ms. Brooks request because a court is authorized to reduce a prison term on this basis only "upon motion of the Director of the Bureau of Prisons." 18 U.S.C. § 3582(c)(1)(A). The process by which an inmate may request that the Bureau file such a motion is outlined in BOP Program Statement 5050.49, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g). The
The Court is sympathetic to the medical situation Ms. Brooks has described. However, the Court does not have authority to modify Ms. Brooks' sentence under these circumstances. For the reasons state above, the Motion to Reduce Sentence, dkt. [193] is
Federal Bureau of Prisons
This Change Notice (CN) implements the following change to Program Statement 5050.49,
b.
▪ Age 65 and older.
▪ Suffer from chronic or serious medical conditions related to the aging process.
▪ Experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility.
▪ Conventional treatment promises no substantial improvement to their mental or physical condition.
▪ Have served at least 50% of their sentence.
Additionally, for inmates in this category, the BOP should consider the following factors when evaluating the risk that an elderly inmate may reoffend:
▪ The age at which the inmate committed the current offense.
▪ Whether the inmate suffered from these medical conditions at the time the inmate committed the offense.
▪ Whether the inmate suffered from these medical conditions at the time of sentencing and whether the Presentence Investigation Report (PSR) mentions these conditions.
The BOP Medical Director will develop and issue medical criteria to help evaluate the inmate's suitability for consideration under this RIS category.
Federal Bureau of Prisons
For the purposes of this Program Statement, the terms "compassionate release" and "reduction in sentence" are used interchangeably.
In deciding whether to file a motion under either 18 U.S.C. 4205(g) or 18 U.S.C. 3582(c)(1)(A), the Bureau of Prisons (BOP) should consider whether the inmate's release would pose a danger to the safety of any other person or the community.
Implementing information is in this type.
a.
▪ A motion for a modification of a sentence will be made to the sentencing court only in particularly extraordinary or compelling circumstances that could not reasonably have been foreseen by the court at the time of sentencing.
▪ The public will be protected from undue risk by careful review of each compassionate release request.
▪ Compassionate release motions will be filed with the sentencing judge in accordance with the statutory requirements of 18 U.S.C. 3582 (c)(1)(A) or 4205(g).
b.
Policy Rescinded
The following have been added to this version of the Program Statement:
▪ Criteria regarding requests based on medical circumstances.
▪ Criteria regarding requests based on non-medical circumstances for elderly inmates.
▪ Criteria regarding requests based on non-medical circumstances in which there has been the death or incapacitation of the family member caregiver of an inmate's child.
▪ Criteria regarding requests based on non-medical circumstances in which the spouse or registered partner of an inmate has become incapacitated.
▪ A list of factors that should be considered for all requests.
▪ Information regarding the electronic tracking database.
The criteria for a reduction in sentence (RIS) request may include the following:
a.
b.
▪ Completely disabled, meaning the inmate cannot carry on any self-care and is totally confined to a bed or chair; or
▪ Capable of only limited self-care and is confined to a bed or chair more than 50% of waking hours.
The BOP's review should also include any cognitive deficits of the inmate (e.g., Alzheimer's disease or traumatic brain injury that has affected the inmate's mental capacity or function). A cognitive deficit is not required in cases of severe physical impairment, but may be a factor when considering the inmate's ability or inability to reoffend.
All RIS requests should be assessed using the factors outlined in Section 7.
The criteria for a RIS request may include the following:
a.
b.
▪ Age 65 and older.
▪ Suffer from chronic or serious medical conditions related to the aging process.
▪ Experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional facility.
▪ Conventional treatment promises no substantial improvement to their mental or physical condition.
▪ Have served at least 50% of their sentence.
Additionally, for inmates in this category, the BOP should consider the following factors when evaluating the risk that an elderly inmate may reoffend:
▪ The age at which the inmate committed the current offense.
▪ Whether the inmate suffered from these medical conditions at the time the inmate committed the offense.
▪ Whether the inmate suffered from these medical conditions at the time of sentencing and whether the Presentence Investigation Report (PSR) mentions these conditions.
The BOP Medical Director will develop and issue medical criteria to help evaluate the inmate's suitability for consideration under this RIS category.
c.
Elderly inmates who were age 60 or older at the time they were sentenced ordinarily should not be considered for RIS if their current conviction is listed in the Categorization of Offenses Program Statement.
All RIS requests should be assessed using the factors outlined in Section 7.
The criteria for a RIS request may include the death or incapacitation of the family member caregiver of an inmate's child, e.g., RIS requests from inmates whose biological or legally adopted child or children ("child") are suddenly without a family member caregiver due to that caregiver's death or incapacitation.
For these requests, "child" means a person under the age of 18 and "incapacitation" means the family member caregiver suffered a severe injury (e.g., auto accident) or suffers from a severe illness (e.g., cancer) that renders the caregiver incapable of caring for the child.
In reviewing these requests, BOP should assess, based on the information provided, whether release of the inmate to care for the inmate's child is in the best interest of the child.
a.
▪ A statement that explains that the inmate's family member caregiver has died or become incapacitated and that person was the caregiver for the inmate's biological or legally adopted child.
▪ A statement that this person was the only family member capable of caring for the inmate's child.
▪ The name of the deceased or incapacitated family member caregiver and the relationship of that person to the inmate (e.g., spouse, common-law spouse, mother, sister) and statement that the caregiver is a family member of the child.
▪ For requests based on a deceased family member caregiver, an official copy of the family member caregiver's death certificate.
▪ For requests based on an incapacitated family member caregiver, verifiable medical documentation of the incapacitation.
▪ Verifiable documentation that the inmate is the parent of the child. Acceptable documentation includes birth certificates, adoption papers, or verification of the inmate's paternity.
▪ Verifiable documentation providing the name and age of the child.
▪ A clear statement and documentation that the inmate has a release plan, including housing, and the financial means to care for the child immediately upon the inmate's release.
▪ Authorization from the inmate for the BOP to obtain any information or documents from any individual, medical entity or doctor, or any government agency about the inmate, family members, and minor child.
The Warden may deny the inmate's request at the institution level of review if the Warden finds that the inmate has not provided adequate information and documentation as set forth above. b.
▪ A general description of the child's physical and mental condition.
▪ A description of the nature of the child's care both during the inmate's pre-arrest and presentence period, and during the inmate's current incarceration.
▪ Letters or documentation that the deceased/incapacitated family member was and still is the only family member caregiver capable of caring for the inmate's minor child. These letters or documentation should include:
All RIS requests should be assessed using the factors outlined in Section 7 as well as the following factors.
▪ Has the inmate committed violent acts before or during the period of incarceration as reflected in the PSR, institutional disciplinary records, or other appropriate documentation?
▪ Did the inmate have drugs, drug paraphernalia, firearms, or other dangerous substances in the home while caring for the child prior to incarceration?
▪ To what degree has the inmate had contact with or cared for the child prior to arrest, pretrial or pre-sentence, and during incarceration? Staff should review institution records for evidence of contact (telephone, mail, email, visiting log, etc.).
▪ Is there any evidence of child abuse, neglect, or exploitation in the PSR or other documents?
▪ Are there any documents regarding the inmate's parenting skills or obligations (e.g., child support orders, restraining orders for physical or emotional abuse of spouse, registered partner or children, certificates for classes in anger management or other types of counseling, removal of child from the home for any reasons)?
▪ Are there records regarding the termination of parental rights or loss of custody of the inmate's (other) child?
▪ Does the inmate have a detainer as a deportable alien to a country other than where the child resides?
▪ Has the inmate received public funding or had a job with a living wage for any period of time prior to incarceration?
▪ Has the inmate engaged in programming (e.g., parenting, anger management) during incarceration that would indicate efforts to improve parenting skills or that would indicate a commitment to caring for the child upon release?
Wardens should also consider any additional reliable documentation (e.g., letters of support from family members, neighbors, doctors, hospitals, and state or local agencies). Documentation may be obtained with the assistance of the Office of Probation and Pretrial Services. Wardens should also consider whether the inmate participated in the Inmate Financial Responsibility Program and any information relating to the inmate's substance abuse treatment, physical/mental/ emotional health, and work evaluations during incarceration.
The care of a child may be requested to be a condition of the inmate's release to a supervised release term. Thus, failure to care for the child may result in a finding of a supervised release violation and return to custody.
The criteria for a RIS request may include the incapacitation of an inmate's spouse or registered partner when the inmate would be the only available caregiver for the spouse or registered partner.
For these requests, "spouse" means an individual in a relationship with the inmate, where that relationship has been legally recognized as a marriage, including a legally-recognized commonlaw marriage. "Registered partner" means an individual in a relationship with the inmate, where that relationship has been legally recognized as a civil union or registered domestic partnership. The relationship should have been established before the inmate's offense date of arrest, and should be verified by information in the PSR or other administratively acceptable documentation (e.g. marriage certificate).
For these requests, "incapacitation" means the inmate's spouse or registered partner has:
▪ Suffered a serious injury, or a debilitating physical illness and the result of the injury or illness is that the spouse or registered partner is completely disabled, meaning that the spouse or registered partner cannot carry on any self-care and is totally confined to a bed or chair; or
▪ A severe cognitive deficit (e.g., Alzheimer's disease or traumatic brain injury that has severely affected the spouse's or registered partner's mental capacity or function), but may not be confined to a bed or chair.
For these requests, the inmate should demonstrate that the inmate is the only available caregiver for the spouse or registered partner, meaning there is no other family member or adequate care option that is able to provide primary care for the spouse or registered partner.
▪ Statement that explains that the inmate's spouse or registered partner has become incapacitated.
▪ Statement that the inmate is the only family member capable of caring for the spouse or registered partner.
▪ Verifiable medical documentation of the incapacitation of the spouse or registered partner.
▪ A clear statement and documentation of the inmate's release plan, including housing, and the financial means to care for the spouse or registered partner immediately upon release.
▪ Written authorization from the inmate and others (as needed) for the BOP to obtain any information or documents from any individual, medical entity or doctor, or any government agency about the inmate, the spouse or registered partner, or other family members.
The Warden may deny the inmate's request at the institution level of review if the Warden finds that the inmate has not provided adequate information and documentation as set forth above.
▪ A general description of the spouse's or registered partner's physical and mental condition.
▪ A description of the nature of the spouse's or registered partner's care, as relevant, during the inmate's pre-arrest and pre-sentence period, and during the inmate's current incarceration.
▪ Letters or documentation indicating whether the inmate is the only family member caregiver capable of caring for the spouse or registered partner. This should include an explanation of who has been caring for the spouse or registered partner during the inmate's period of incarceration, as relevant.
▪ Letters or documentation indicating the spouse or registered partner is, or would be, supportive of the inmate's release, and of the inmate assuming the role of the primary caregiver.
All RIS requests should be assessed using the factors outlined in Section 7 as well as the following factors.
▪ Has the inmate committed violent acts before or during the period of incarceration, as reflected in the PSR, institution disciplinary records, or other appropriate documentation?
▪ To what extent would the inmate and spouse or registered partner be relying on publicly available resources (e.g., financial or medical) to provide care to the spouse or registered partner?
▪ Has the inmate ever been charged with, or convicted of, a crime of domestic violence?
▪ Did the inmate share a residence with the spouse or registered partner prior to the period of incarceration?
▪ Did the inmate have drugs, drug paraphernalia, firearms, or other dangerous substances in the home shared with the spouse or registered partner prior to incarceration?
▪ To what degree has the inmate had contact with (or cared for) the spouse or registered partner prior to arrest, pretrial or pre-sentence, and during incarceration? Staff should review institution records for evidence of contact (telephone, mail, email, visiting log, etc.).
▪ Is there any evidence of abuse or neglect involving the spouse or registered partner in the PSR or other documents?
▪ Are there any documents regarding the inmate's custodial skills or obligations (e.g., child support orders, restraining orders for physical or emotional abuse of spouse or registered partner or children, certificates for classes in anger management or other types of counseling, removal of children from the home for any reasons)?
▪ Does the inmate have a detainer as a deportable alien to a country other than where the spouse or registered partner resides?
▪ Has the inmate received public funding or had a job with a living wage for any period of time prior to incarceration?
▪ Has the inmate engaged in programming (e.g., anger management, financial responsibility program) during incarceration that would indicate efforts to improve custodial skills and/or that would indicate a commitment to the inmate's spouse or registered partner upon release?
Wardens should also consider any additional reliable documentation (e.g., letters of support from family members, neighbors, doctors, hospitals, and state or local agencies). Documentation may be obtained with the assistance of the Office of Probation and Pretrial Services.
The care of the spouse or registered partner may be requested to be a condition of the inmate's release to a supervised release term. Thus, failure to care for the spouse or registered partner may result in a finding of a supervised release violation and return to custody.
For all RIS requests, the following factors should be considered:
▪ Nature and circumstances of the inmate's offense.
▪ Criminal history.
▪ Comments from victims.
▪ Unresolved detainers.
▪ Supervised release violations.
▪ Institutional adjustment.
▪ Disciplinary infractions.
▪ Personal history derived from the PSR.
▪ Length of sentence and amount of time served. This factor is considered with respect to proximity to release date or Residential Reentry Center (RRC) or home confinement date.
▪ Inmate's current age.
▪ Inmate's age at the time of offense and sentencing.
▪ Inmate's release plans (employment, medical, financial).
▪ Whether release would minimize the severity of the offense.
When reviewing RIS requests, these factors are neither exclusive nor weighted. These factors should be considered to assess whether the RIS request presents particularly extraordinary and compelling circumstances.
Overall, for each RIS request, the BOP should consider whether the inmate's release would pose a danger to the safety of any other person or the community.
The Warden's referral at a minimum must include the following:
a. The Warden's written recommendation as well as any other pertinent written recommendations or comments made by staff during the institution review of the request.
b. A complete copy of Judgment and Commitment Order or Judgment in a Criminal Case and sentence computation data.
c. A progress report that is not more than 30 days old. All detainers and holds should be resolved prior to the Warden's submission of a case under 18 U.S.C. 3582 (c)(1)(A) or 4205(g). If a pending charge or detainer cannot be resolved, an explanation of the charge or conviction status is needed.
d. All pertinent medical records if the reason for the request involves the inmate's health. Pertinent records include, at a minimum, a Comprehensive Medical Summary by the attending physician, which should also include an estimate of life expectancy, and all relevant test results, consultations, and referral reports/opinions.
e. The referral packet must include, when available, a copy of the Presentence Investigation and Form U.S.A. 792, Report on Convicted Offender by U.S. Attorney, Custody Classification form, Notice of Action forms, Probation form 7a, information on fines, CIM Case Information Summary (BP-A0339), and any other documented information that is pertinent to the request. In the absence of a Form U.S.A. 792, the views of the prosecuting Assistant U.S. Attorney may be solicited; those views should be made part of the Warden's referral memo.
f. If the inmate is subject to the Victim and Witness Protection Act of 1982 (VWPA), confirmation of notification to the appropriate victim(s) or witness(es) must be incorporated into the Warden's referral. A summary of any comments received must also be incorporated into the referral. If the inmate is not subject to the VWPA, a statement to that effect must be in the referral.
g. For a request under 18 U.S.C. 3582(c)(1)(A), when a term of supervised release follows the term of imprisonment, confirmation that release plans have been approved by the appropriate U.S. Probation Office must be included in the referral. If the inmate will be released to an area outside the sentencing district, the U.S. Probation Office assuming supervision must be contacted. If no supervision follows the term of imprisonment, release plans must still be developed.
h. The development of release plans must include, at a minimum, a place of residence and the method of financial support, and may require coordination with various segments of the community, such as hospices, the Department of Veterans Affairs or veterans' groups, Social Security Administration, welfare agencies, local medical organizations, or the inmate's family.
i. Because there is no final agency decision until the Director has reviewed the request, staff at any level may not contact the sentencing judge or solicit the judge's opinion through other officers of the court.
Institution staff prepare an amended Sentence Data Summary for use at this hearing. Staff provide a copy of the most recent progress report to the Parole Commission.
A request for an expedited review permits the review process to be expedited, but does not lessen the requirement that documentation be provided.
To ensure consistent handling and documentation of RIS requests, Wardens must identify a staff member to serve as an institution RIS Coordinator (IRC) and an alternate. The principal responsibility of the IRC is to receive and document RIS requests and other RIS-related information in the RIS electronic tracking database.
For each RIS request, the following information is entered into the RIS tracking database by the IRC:
▪ Inmate's full name.
▪ Federal register number.
▪ Date of birth and age.
▪ Institution.
▪ Date RIS request received by institution.
▪ Reason for RIS request.
▪ Disposition of request (e.g., approval or denial).
▪ Reason for disposition.
▪ Date of disposition of request.
At the Central Office (CO) level, information regarding RIS requests is entered into the database by RIS Coordinators in the Office of General Counsel, the Health Services Division, and the Correctional Programs Division. The following information is entered into the RIS tracking database by CO staff:
▪ Date RIS request received by CO.
▪ Director's final decision.
None.
Federal Regulations
▪ Rules cited in this Program Statement are contained in 28 CFR 571.60 through 571.64.
▪ Rules referenced in this Program Statement are contained in 28 CFR 542.10 through 542.16 and 572.40.
U.S. Code Referenced
▪ Title 18, United States Code, Section 4205(g).
▪ Title 18, United States Code, Section 3582(c)(1)(A).
Records Retention Requirements
Requirements and retention guidance for records and information applicable to this program are available in the Records and Information Disposition Schedule (RIDS) system on Sallyport.
