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 in Angola.
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 away.

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 said.

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 Louisiana governors.
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 of sentencing.

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 are:
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
release request.
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) or 4205(g).

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
CIRCUMSTANCES 571.61
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 decision.
- 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 non-parolable sentences.]

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