May 21, 2007 - National Law Journal (US) Early U.S. Inmate-Release Rules Lead To Clash DOJ Calls Sentencing Panel's Broad Guidelines A 'Dead Letter.' By Marcia Coyle, Staff reporter

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WASHINGTON -- The U.S. Department of Justice and the U.S. Sentencing Commission are at loggerheads over a commission proposal to expand the extraordinary circumstances that make prisoners eligible for so-called compassionate release or reduction in sentence.

The commission in early May sent to Congress a proposed sentencing guideline that, for the first time in 24 years, would give courts guidance on what should be considered extraordinary and compelling grounds for adjusting a sentence.

The guideline broadens the grounds beyond current policy at the Federal Bureau of Prisons, which decides whether to make motions for sentence reductions after receiving prisoners' applications. And the guideline comes at a time when the Justice Department is in the final stage of approving a regulation that narrows even further the current policy.

The American Bar Association, Families Against Mandatory Minimums and other groups had urged the commission for years to act on a mandate to the commission in the Sentencing Reform Act of 1984. In that law, Congress mandated that the commission issue policy statements on how the law's compassionate-release section should operate and what factors should be considered extraordinary and compelling.

The Bureau of Prisons has interpreted the law narrowly, generally only approving motions for cases in which a prisoner is terminally ill or incapacitated by illness.

The Justice Department warned last summer that any expansion of current policy would be a "dead letter." A department spokesman reiterated that opposition to the commission's new submission to Congress.

"The [commission] should have limited the examples of extraordinary and compelling reasons to the inmate's terminal medical condition, with a life expectancy of one year or less, or medical conditions that are profoundly debilitating in nature," the spokesman said. The requirement that the prisoner have a life expectancy of one year or less is contained in the department's proposed regulation.

Despite the department's opposition, the commission defines extraordinary and compelling reasons as: terminal illness; a permanent physical or medical condition, or deteriorating physical or mental health because of the aging process, that "substantially diminishes" the prisoner's ability to provide self-care; the death or incapacitation of the prisoner's only family member capable of caring for the prisoner's minor child or minor children; or, as determined by the Bureau of Prisons, there is an extraordinary and compelling reason other than, or in combination with, the reasons described.

'Grossly Underutilized'

Since 1990, the Bureau of Prisons has filed an average of 22 sentence-reduction motions each year despite a steadily increasing federal prison population.

"Logic would say it has to be true that this provision is grossly underutilized," said Professor Stephen Saltzburg of George Washington University Law School, who presented the ABA's views to the commission. "We know in prisons we have rising levels of hepatitis and less adequate medical care. All circumstances suggest as the population rose and conditions didn't get any better there would be more occasions for use of the statute."

But the statute has never been a priority of the bureau or the department, he added, even though it is an important feature of sentencing law.

However, the Justice Department spokesman said the guideline "could undermine the determinate sentencing system established by the Sentencing Reform Act by treating compassionate release as an open-ended, parole-like early-release mechanism."

Mary Price, vice president and general counsel of Families Against Mandatory Minimums, said, "We feel very strongly the commission left open the possibility that a future Bureau of Prisons -- not this one -- might take a more generous view of this authority."

As long as the commission did nothing, said Saltzburg, it was "almost certain" the statute would remain, in the words of the Justice Department, "a dead letter." But the guideline, he added, will allow interested observers, including those in Congress, to ask the bureau and the department why they aren't considering those standards, as the law requires.

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