Bungled Compassionate Release Proceedings
After spending 23 years in prison for selling
a small amount of heroin, Otho Linnear was approved by the Pardon
Board to spend his final days at home with his family. Board
members unanimously voted to commute his sentence to years served,
and allow him to die, unconfined, from either heart disease or
cancer, which ever took him first. But instead of compassionate
release being implemented, he was mistakenly pardoned. The error,
delaying the release of Linnear, was brought to the attention
of board chairman Irv Magri by a secretary in early January.
Magri had planned on correcting the mistake at the next scheduled
meeting on February 1. But on January 27, six days prior to the
board meeting Otho Linnear died in the Louisiana State Penitentiary
Mr. Magri defended his decision to wait a month to deal with
the botched paperwork.
"It was an effort to be honest and correct.
A lot of boards would have just let it slide through, but I don't
want to take any short cuts, and I wanted it legally correct,"
said Magri. "Sure, I would have liked to have seen him benefit
from what we attempted to do, but quite frankly he told us he
made some terrible choices in his life. What this case really
underscores is that you cannot distribute heroin in Louisiana
without paying a terrible consequence," he concluded.
In addition to bungling the compassionate
release proceedings, Chairman Magri failed to send Mr. Linnear's
clemency papers to Governor Mike Fosters office for his signature
until February 23, almost a month after their prisoner had passed
Mr. Linnear's sister, Dorothy Robertson, of
Shreveport was distraught.
"He was looking forward to coming home he told us he didn't
want to die there. He was a kind-hearted man. He had his days
like everyone else. I don't think he got what he deserved. That's
a mighty long time to spend for $200 worth of heroin," Dorothy
State records do not dispute the small quantity
of the drug that Linnear said he sold in 1976 to an undercover
agent in a hotel room in Bossier City, La. Mr. Linnear was not
a violent criminal. He was not a kingpin or a major drug dealer,
Yet locked in prison for 23 hard years until death was the terrible
consequence that Parole Board Chairman Magri believes his prisoner
should pay for his terrible choices. Yes, Linnear had chosen
to commit crimes. He had one prior conviction in 1959 for mail
theft, and for that, he served one year in jail. It was his second
offense, 17 years later, that the state of Louisiana required
his life in payment for a petty drug deal. Not by any logical
standard of justice, nor by any stretch of a sane imagination,
did his crime warrant this immorally harsh degree of punishment.
Clemency was recommended for Linnear by the Pardon Board in
1985, 1991 and 1995, but all were rejected by crime fighting
Otho Linnear's sister lamented, "We were looking forward
to him coming home, but not the way we got him."
Federal Bureau of Prisons Program Statement 5050.46
Compassionate Release Procedures for Implementation
18 U.S.C. 3582 (c)(1)(A) & 4205(g)
1. PURPOSE AND SCOPE 571.60 under 18 U.S.C. 4205(g), a sentencing
court, on motion of the Bureau of Prisons, may make an inmate
with a minimum term sentence immediately eligible for parole
by reducing the minimum term of the sentence to time served.
Under 18 U.S.C 3582(c)(1)(A), a sentencing court, on motion of
the Director of the Bureau of Prisons, may reduce the term of
imprisonment of an inmate sentenced under the Comprehensive Crime
Control Act of 1984.
The Bureau uses 18 U.S.C. 4205(g) and 18 U.S.C. 3582(c)(1)(A)
in particularly extraordinary or compelling circumstances that
could not reasonably have been foreseen by the court at the time
CFR Cross Reference Note:
[572.40 Compassionate release under 18 U.S.C. 4205(g) was repealed
effective November 1, 1987, but remains the controlling law for
inmates whose offenses occurred prior to that date. For inmates
whose offenses occurred on or after November 1, 1987, the applicable
statute is 18 U.S.C. 3582(c)(1)(A). Procedures for compassionate
release of an inmate under either provision are contained in
28CFR part 571, subpart G]
2. PROGRAM OBJECTIVES. The expected results of this program
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,
b. The public will be protected from undue risk by careful
review of each compassionate
c. Compassionate release motions will be filed with the sentencing
judge in accordance with the requirements of 18 U.S.C. 3582(c)(1)(A)
3. DIRECTIVES AFFECTED
a. Directive Rescinded
b. Directive referenced. None
c. Rules cited in this Program Statement are contained in 28
CFR 571.60 through 571.64
d. Rules referenced in this Program Statement are contained
in 28 CFR 542.10 through
542.16 and 572.40
4. Standards Referenced. None.
5. [INITIATION OF REQUEST - EXTRAORDINARY OR COMPELLING
a. A Request for motion under 18 U.S.C. 4205(g) or 3582 (c)(1)(A)
shall be submitted to the Warden. Ordinarily, the request shall
be in writing and submitted by an inmate. An inmate may initiate
a request for consideration only when there are particularly
extraordinary or compelling circumstances that could not reasonably
have been foreseen by the court at the time of sentencing. The
inmate's request shall contain the following information:
- The extraordinary or compelling circumstances that the inmate
believes warrant consideration.
- Proposed release plans, including where the inmate will reside,
how the inmate will support himself/herself, and, if the basis
for the request involves the inmates health, information where
the inmate will receive medical treatment, and how the inmate
will pay for such treatment.
b. The Bureau of Prisons makes a motion under 18 U.S.C. 4205(g)
or 3582(c)(1)(A) only after review of the request made by another
person on behalf of an inmate in the same manner as an inmate's
request. Staff shall refer a request received at the Central
Office or at a Regional Office to the Warden of the institution
where the inmate is confined.
6. APPROVAL OF REQUEST 571.62.
a. The Bureau of Prisons makes a motion only after review of
the request by the Warden, the Regional Director, the General
Counsel and either the Medical Director for medical referrals
or the Assistant Director, Correctional Programs Division for
non-medical referrals, and with the approval of the Director,
Bureau of Prisons.
- The Warden shall promptly review a request for consideration
under 18 U.S.C.4205(g) or 3582(c)(1)(A). If the Warden, upon
an investigation of the request determines that the request warrants
approval, the Warden shall refer the matter in writing with recommendation
to the Regional Director,]
- If the Regional Director determines that the request warrants
approval, the Regional Director shall prepare a written recommendation
and refer the matter to the Office of General Counsel.
- If the General Counsel determines that the request warrants
approval, the General Counsel shall solicit the opinion of either
the Medical Director or the Assistant Director, Correctional
Programs Division, depending upon the nature of the basis for
the request. With this opinion, the General Counsel shall forward
the entire matter to the Director, Bureau of Prisons, for final
- If the Director, Bureau of Prisons, grants a request under
18 U.S.C. 4205(g) or 18
U.S.C. 3582(c)(1)(A), the Director will contact the U.S. Attorney
in the district in which the inmate was sentenced regarding moving
the sentencing court on behalf of the Bureau of Prisons to reduce
the minimum term of the inmate1s sentence to time served.
b. Upon receipt of notice that the sentencing court has entered
an order granting the motion under 18 U.S.C. 4205(g) or 18 U.S.C.
3582(c)(1)(A), the Warden of the institution where the inmate
is confined shall release the inmate forthwith.
c. In the event the basis of the request is the medical condition
of the inmate, staff shall expedite the request at all levels.]
7. Denial of request 571.63
a. When an inmate1s request for consideration by the Warden
or Regional Director, the approving official shall provide the
inmate with a written notice and statement of reasons for the
denial. The inmate may appeal the denial through the Administrative
Remedy Procedure (28 CFR part 542, subpart B).
b. When the General Counsel denies an inmate's request for
consideration, the General Counsel shall provide the inmate with
a written notice and statement of reasons for the denial. This
denial constitutes a final administrative decision.
c. When the Director, Bureau of Prisons, denies an inmate's
request, the Director shall provide the inmate with a written
notice for the denial within 20 workdays after receipt of the
referral from the Office of General Counsel. A denial by the
Director constitutes a final administrative decision.
d. Because a denial by the General Counsel or Director, Bureau
of Prisons constitutes a final administrative decision, an inmate
may not appeal the denial through the Administrative Remedy Procedure.
8. [Ineligible Offenders 571.64. The Bureau of Prisons has
no authority to initiate a request on behalf of state prisoners
housed in Bureau of Prisons facilities or D.C. Code offenders
confined in federal prison institutions. The Bureau of Prisons
cannot initiate such a motion on behalf of federal offenders
who committed their offenses prior to November 1, 1987, and received