I learned about Mr. Raymond the way I so often hear about such cases — from a family member in a phone call.[1] By “such cases” I mean elderly, sick, even dying federal prisoners trying to secure early release using the Bureau of Prisons’ (BOP) compassionate release program. The call from Mr. Raymond’s daughter was like hundreds I have taken over the years from family members: she was frustrated, frightened, and completely in the dark about the status of her father’s application for release.

At 74 years old, Mr. Raymond had served more than 15 years of his 20-year sentence, and Corrections staff thought he had done enough time. He clearly met the BOP criteria for elderly compassionate release, so they helped him submit his request to the warden on December 22, 2015.

Then the waiting began.

Mr. Raymond was not dying, but he was aged and ailing. The BOP had funded his very expensive medical care; he has a heart condition and received a pacemaker while incarcerated. As months passed without word about his request, stress-test results caused his prison doctors grave concerns. Then his vision began to deteriorate. Staff sent updated medical reports to the BOP’s central office. Mr. Raymond considered seeking a transfer to a prison hospital in North Carolina. Finally, after a full year of silence, the BOP approved his request.

Why, his family asked me, is this process so hard?

The Rules of “Compassion”

Once available only to prisoners on the verge of death — and even then very rarely — the compassionate release program was expanded in August 2013 in response to sharp scrutiny from the Inspector General of the Department of Justice and to criticism from advocates such as FAMM. The revised rules extended eligibility to elderly prisoners with or without medical conditions, among others. At first glance, the new rules are laudable for their apparent breadth. But scratch the surface and one finds a program notable only for its neglect. Compassionate release is the exception rather than the rule.

Take, for example, the plight of elderly prisoners like Mr. Raymond. The BOP’s revised rules were to cover prisoners 65 years old or older who have served at least 50 percent of their sentence and who suffer from chronic or serious medical conditions. Healthy prisoners 65 or older who have served the greater of ten years or 75 percent of their sentences were also deemed eligible. But, only a scant handful is ever recommended for release.

The DOJ’s Inspector General found that in the first full year after the expansion of compassionate release, 93 elderly prisoners applied under the non-medical provision but only 2 were released. None of the 203 elderly prisoners with medical conditions who applied made it out. While the numbers picked up in 2015, in FY 2016, there were only 5 such releases.

How, you might ask, can a program with “compassion” in its name The answer lies in who administers it. Modern-day compassionate release was set up by Congress in the Sentencing Reform Act of 1986. The SRA strictly limited the ability of federal courts to revisit finalized convictions. Parole was eliminated, and federal prisoners were expected to serve the sentence imposed, with a small credit for good time. With very few exceptions, “Do the crime, do the time” sentencing became the law, and courts lost jurisdiction to revisit sentences.

Congress made an exception, however, if prisoners developed “extraordinary and compelling” reasons justifying early release.[3] In 28 U.S.C. § 994(t), Congress directed the U.S. Sentencing Commission to identify criteria for what constituted extraordinary and compelling reasons. The BOP was given the job of identifying prisoners who met the criteria and of petitioning the court for their release. The U.S. Attorney represents the BOP in court and files the motion for a reduction in sentence. Finally, judges are responsible for deciding whether the prisoner meets the early release criteria and whether they deserve to be released, based on their history, crime, and conduct in prison. If so, the court orders their release.

Jailer and Judge

Congress did not give prisoners the right to petition the court directly or appeal an adverse decision from the BOP to the court. The BOP’s decision is final and unreviewable. This means the power to free a prisoner is placed in the hands of the prosecutor who worked hard to convict him and the jailer whose job it is to keep him locked up. Their reluctance to promote release is hardly surprising. In practice, the BOP and the DOJ make decisions that Congress intended should be left to judges. Because Congress made the BOP the gatekeeper and gave prisoners no independent power to petition the courts or appeal an adverse decision, the BOP is the jailer and the judge in all compassionate release cases.

The BOP’s stinginess has drawn fire even from the staid Sentencing Commission. That body revisited and updated compassionate release criteria in 2016. At a hearing on the subject, commissioners had sharp questions for the BOP and its sparing use of compassionate release. The criteria the Commission adopted included a pointed directive to the BOP, saying in essence that the BOP should confine itself to determining if a prisoner meets the criteria and bringing a motion for reduction in sentence to the court if so as Congress intended.

Compassion aside, there are other sound reasons to make it a practice to release elderly prisoners who have served a significant portion of their sentence, many of whom are suffering from age-related illnesses or conditions that make their continued incarceration inhumane and expensive.

Aging prisoners are increasing as a proportion of the federal prison population. According to a report by the Urban Institute, there were slightly more than 5,000 prisoners 65 and older in federal prison in 2011 (3 percent of the BOP population), and they are expected to triple in number by 2019. That number is driven by punitive charging practices and sentencing policies. The fiscal burden of housing aging prisoners threatens the BOP’s budget. The costs of incarcerating such prisoners are three to five times higher than younger prisoners. One study found that medical costs alone for prisoners 55 and over were five times those of younger prisoners.

Moreover, recidivism declines with age. The Office of the Inspector General found that the 15 percent recidivism rate of prisoners 50 years and older is much lower than the 41 percent re-arrest rate for all federal prisoners. Prisoners released through the compassionate release program had the lowest recidivism rates of all, 3.5 percent.

If the BOP is unable or unwilling to treat the compassionate release program as Congress intended, Congress should take steps to ensure that prisoners denied or neglected by the BOP nonetheless get their day in court. Congress can do so by giving prisoners the right to appeal a BOP denial to court or to seek a decision from the BOP in cases such as that of Mr. Raymond, in which delays stretch out over months or even years. Such a right to an appeal will restore to the courts the authority that the BOP has usurped: to determine whether a prisoner meets compassionate release criteria and if so, whether he deserves to be released.

A closing note: Mr. Raymond was one of the lucky few. Not so his prison mate, who like Mr. Raymond sought compassionate release but unlike him died while awaiting a decision.

[1] I have used pseudonyms to protect the privacy of the family involved.

[2] The Bureau of Prisons published a notice in the Federal Register last year, proposing to change the name of the program from “Compassionate Release” to “Reduction in Sentence in Extraordinary and Compelling Circumstances.”

[3] See 18 U.S.C. § 3582(c)(1)(A)(i).