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 What Options for Early Release? 

Michael Santos

Michael Santos

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This article addresses mechanisms for early release through the executive branch of government rather than the judicial system. Those mechanisms include:

Good Time Credit: Avoiding disciplinary infractions and compliance with BOP programs entitles each person to 54 days of “good-time” credits. There is some controversy about the manner in which the BOP calculates or credits those 54 days of available good time. Basically, an individual who doesn’t cause trouble serves roughly 10 months for every year that the judge imposed at sentencing.

RDAP: People who successfully complete the Residential Drug Abuse Program (RDAP) may receive up to one year of time cut off from their release date. To qualify, however, an individual must document his problem with substance abuse at the appropriate time; he cannot be late in preparing that documentation. A separate article in this category reveals more about RDAP.

Compassionate Release: Under Title 18 of the United States Code, Section 3582(c)(1)(A), “a sentencing court, on motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment of a person sentenced under the Comprehensive Crime Control Act of 1984.” This statute governs a policy called “Compassionate Release.” Administrators in the BOP abide by Program Statement 5050.49. The BOP will only make the motion to a sentencing court in “particularly extraordinary or compelling circumstances.” Those circumstances include:

  • Requests based on medical circumstances.
  • Requests based on non-medical circumstances for elderly people.
  • Requests based on non-medical circumstances in which there has been the death or incapacitation of the family member caregiver of a person’s child.
  • Requests based on non-medical circumstances in which the spouse or registered partner of a person has become incapacitated.

Executive Clemency: The United States Constitution, Article II, Section 2, authorizes the President of the United States to adjust prison sentences through Executive Clemency. People may read about this mechanism in Title 28 of the United States Code, Sections 509 and 510. In the past, this has been a very high hurdle. But the crowded prison system has spawned reforms with regard to Executive Clemency.

Every person going into the system should know and understand details on each of the above-mentioned, early-release mechanisms. We will discuss them in order.

Good Time Credit:

When a federal judge sentences an individual to a clearly defined number of months, the person eventually makes his way to the Federal Bureau of Prisons. All federal people who were sentenced for crimes that occurred after November 1, 1987, serve time under a system that is known as the Comprehensive Crime Control Act. As such, Title 18 of the United States Code, section 3585(a) applies to them. That section indicates that the Bureau of Prisons will credit 54 days credit each year to prisoners who comply with all programs and avoid disciplinary infractions.

Program Statement 5884.03 governs the way that the Bureau of Prisons issues those good-time credits. Instead of issuing the 54 days automatically, the BOP prorates the amount. In other words, the BOP sets the time aside at the end of each 365-day period. In reality, the prisoner only receives 47 days of good-time credit; he must serve 365 days to receive 54 days. To illustrate, if a judge sentences a person to 60 months, or five years, it would seem that 54 days would entitle the person to a total of 270-days of possible good time (54 days times five years equals 270 days). Yet as a consequence of the BOP’s calculations, the maximum good time credit amounts to 235 days. Many attorneys have brought suit against the BOP over this apparent conflict, but the Supreme Court ruled that BOP administrators have absolute discretion with regard to dispensing good time credits. In order to earn good time, a person must meet the following criteria:

Have a sentence that exceeds one year, even if it’s one year and one day.

  • Demonstrate proof of having a high school diploma, a GED, or be working toward a diploma.
  • Avoid disciplinary infractions that can result in the loss of good time during a given a year.
  • People who cannot prove that they have a high school diploma or GED will not receive the full amount of good time that other people receive.

The applicable federal statute requires the BOP to issue the good time credit after the first year of confinement. So if a person begins serving his sentence on December 1, 2014, the BOP will award good time by December 16, 2014 (15 days after the first year ends). That is when the good time vests, meaning it’s more difficult (though not impossible) for the BOP to take the good-time credit away.

Retracting good-time awards:

If a prisoner receives a disciplinary infraction before the good time vests, the person should expect the BOP to extend his sentence by seizing good time.

If the person’s good time from previous years has vested, the BOP can still take the good time if he participated in serious misconduct that disrupted the security of the institution, like a riot or a food strike.

The BOP can retract previously awarded good-time if administrators later find that the person committed disciplinary infractions during a year that it already awarded good time.

The bottom line: people who want to receive the maximum amount of good time don’t have to do anything especially “good” or meritorious. They simply must avoid disciplinary infractions and participate in the GED program if they cannot show that they have a high school diploma or its equivalent. A person who works every day of his sentence to build stronger community ties, educates himself, opens employment opportunities, and contributes to society will receive the same amount of good time as the individual who spends his entire sentence playing cards and dominoes. The BOP will issue good time to people who do not receive disciplinary infractions and show high school equivalency or progress toward high school equivalency.

Residential Drug Abuse Program (RDAP):

Another article in this series goes into great detail of the RDAP program, so we will not reprint the details here. Basically, those who qualify for RDAP may qualify to receive up to 12 months cut from the scheduled release date. The individual’s sentence length and the amount of time he has remaining to serve when he completes the program will determine how much time the BOP cuts from the release date. In a nutshell, with regard to RDAP, the key issue is whether the person properly documented his substance abuse prior to confinement. As stated in lesson eight, the person should prepare himself long before he meets with the probation officer who will complete the Presentence Investigation Report. If the individual fails to document the record appropriately, BOP administrators will not allow him to participate in RDAP and he will not qualify to receive the time cut.

Compassionate Release:

The United States Code provides this mechanism under Title 18, Section 3582, but people must remember the mission of the Bureau of Prisons. Previous articles shows how the system is designed to receive, not to release people before the completion of the sentence. This mechanism is complicated because only the Director of the Bureau of Prisons can initiate the motion. That doesn’t make the motion impossible, but we consider it very unlikely that the Director of the Bureau of Prisons will put forth such a motion. We work with clients and family members of clients who want to pursue this path, but we also urge them to temper expectations. Similarly, people who want to work independently to pursue an early release through this mechanism should not have high expectations for success. Although Congress authorized the mechanism, by giving the Bureau of Prisons discretion on whether to file the motion, they ensured that few people would receive benefit from compassionate release.

In deciding whether to file a motion for Compassionate Release, administrators within the Bureau of Prisons first consider whether the person’s release would pose a danger to the safety of society. When interpreting such language, consider the perspective of BOP administrators. According to them, anytime they authorize the early release of a person, the safety of society is put into more jeopardy than if the person were to remain in custody. Rather than taking the risk of releasing someone early, the BOP encourages staff members to keep people in prison as long as possible.

To initiate a request for release on grounds of compassion, the person must file a request with the warden. His request should articulate that his particular situation has changed since the judge sentenced him, and the changes are of a “particularly extraordinary or compelling” nature. Since the changes could not have been anticipated prior to sentencing, the person may argue that the judge should have an opportunity to review the sentence to determine whether continued incarceration is warranted.

The person’s letter to the warden should also detail his proposed plans in the event that the Director chose to file the motion and a judge chose to release him. In other words, where will the person live? How will he support himself? If the basis for the requests concerns the person’s health, his request should detail how he will receive medical treatment and how the person will pay the costs of that medical treatment.

Theoretically, the Bureau of Prisons must give due consideration to any person request for a reduction in sentence (RIS) under this statute of compassionate release. Some of the grounds for such a request may include:

Terminal Medical Condition. If the person is diagnosed with a terminal, incurable disease, and has a life expectancy of 18 months or less, the BOP may consider the request. The person should show that the condition wasn’t known at the time of sentencing in order to overcome anticipated BOP objections that the judge already knew the medical condition and still imposed the sentence.

Debilitated Medical Condition. If the person can show that he has an incurable, progressive illness, or suffers from a debilitating injury from which he cannot recover, the BOP should consider the request for compassionate release.

Elderly People: People who are 65 or older and suffer from chronic or serious medical conditions, and their health is diminishing, may request compassionate release once they have served at least 50% of the sentence.

Death of a Family Member Caregiver: If the person has a child, and the primary caregiver of that child has either died or become incapacitated, he may request compassionate release so that he can care for the child. The person should provide full documentation that shows the death certificate or verifiable medical documentation of the incapacitation.

Incapacitation of a Spouse: If the person’s spouse became incapacitated, and the person is the only available caregiver, he may request compassionate release.

If the warden agrees that the person’s request has merit, the warden must document his reasons and send his written recommendation for the person’s early release to the Bureau of Prisons’ General Counsel for further review. Neither the warden, nor anyone other than the BOP’s Director can communicate the request to the sentencing judge. Should the Director choose to file a motion, the Director will work with the U.S. Attorney’s Office in the appropriate judicial district to file the motion.

Executive Clemency:

The U.S. Constitution authorizes the President to commute sentences and to forgive people for criminal convictions through the pardon process. These are big issues, especially now, because the Department of Justice has announced that it is working with law firms across the nation to advance more candidates for clemency. Accordingly, work toward building a compelling narrative that would persuade officials at the Department of Justice and the President that continued incarceration is not warranted. They should understand how the executive clemency process works.

First, understand the difference between a pardon and a commutation.

Executive Clemency: Clemency is the overall term for when the President chooses to act on criminal justice matter. The President may choose to forgive a crime in different ways, including amnesty, a pardon, or a commutation.

Amnesty: Through Executive Clemency, the President may choose issue an order of Amnesty to a particular class of offenders. For example, people who violated various laws pertaining to income tax may have qualified for an amnesty grant if they paid the taxes owed by a certain date. In 1977, President Jimmy Carter granted a blanket amnesty to Americans who refused to serve in the Vietnam War, despite laws that required them to register with the military.

Remission: Reduces the financial sanction associated with a sentence.

Reprieve: Delays the imposition of the sentence. This form of Executive Clemency might apply if the President chose to delay the imposition of a death sentence.

Pardon: The President may forgive an offense through the Pardon process. Pardons may have conditions or strings attached, or the President may issue a Pardon without conditions. A Pardon can restore certain rights, like the right to bear arms, to vote, or to run for public office. People who are convicted of felonies lose such rights, but a Pardon can restore them. Although the President can grant a Pardon at any time, typically, they only grant Pardons after the individual has finished serving the sentence and lived as a law-abiding citizen for five years.

Commutation. A commutation will be of interest to anyone in prison, because the President can commute the sentence, at any time. This means the President can say, “enough is enough” by issuing a commutation. The former President Bush commuted the sentence of his aide Scooter Libby, sparing him the indignity of serving a prison sentence altogether.

Acts of Executive Clemency have been rare, especially since our nation made its commitment to mass incarceration. Ironically, when our nation’s prison population was much lower, Presidents were much more generous in their willingness to use their Executive Clemency powers. To illustrate this point, President Lyndon Johnson served between 1964 and 1969. During those years, our nation’s federal prison system confined fewer than 35,000 people. President Johnson received 4,537 requests from people for Executive Clemency. He granted 960 pardons and he commuted the sentence of 226 people.

The federal prison population has surged since President Johnson’s administration. Ironically, as federal prison population levels surged, Presidents grew less inclined to forgive sentences through pardon, or to commute sentences.

During President George W. Bush’s eight-year term, the Federal Bureau of Prisons incarcerated more than 200,000 prisoners at all times. He received a total of more than 11,000 petitions for Executive Clemency. If he granted clemency in the same proportion as President Johnson, he would have either commuted or pardoned the sentences of more than 3,000 people. Instead, he pardoned the crimes of 189 people and commuted only 11 sentences, including that of his pal Scooter Libby.

When I wrote this lesson, in October 2014, President Obama only issued pardons to 52 people. He commuted the sentence of only 10 people. But change is coming.

On April 23, 2014, Deputy Attorney General James M. Cole held an official press conference to announce a new clemency initiative. In his statement, he said:

http://www.justice.gov/opa/pr/announcing-new-clemency-initiative-deputy-attorney-general-james-m-cole-details-broadnew

“For our criminal justice system to be effective, it needs to not only be fair, but it also must be perceived as being fair. These older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system. I am confident that this initiative will go far to promote the most fundamental of American ideals— equal justice under law.”

Attorney General James M. Cole

This new clemency initiative makes it more important than ever for people to understand the process of Executive Clemency. The more people understand, the better prepared they’ll be to make an informed decision on whether they want to advance a petition for a commutation of sentence.

Preparing a Petition for Clemency:

Those who aspire to become recipients of Executive Clemency, whether by commutation or Pardon, should begin engineering a path that would advance the candidacy of their petition. Before beginning, they should understand the process: • Once ready, the person will prepare the petition, addressing it to the President, but submitting the petition to the Pardon Attorney. Official petitions are available through the Case Manager at the Bureau of Prisons, or through the office of the Pardon Attorney.

The Pardon Attorney initiates and directs an investigation. In most cases, the Pardon Attorney will request the US Attorney in the district of conviction to provide comments and recommendations.

The Pardon Attorney will also solicit the views of the sentencing judge. The Pardon Attorney will give considerable weight to the views of both the US Attorney and the sentencing judge when considering the merit of the case.

The Pardon Attorney will also solicit assistance from the Federal Bureau of Investigation, or other law enforcement agencies. If the case involved victims, the Pardon Attorney will ask those investigative agencies to solicit the views of the victims.

The Pardon Attorney will request a progress report from the Federal Bureau of Prisons. The Case Manager will prepare the official progress report. Since the Case Manager will ask the person to sign the Progress Report, the person will have an opportunity to read what the Case Manager wrote.

If after reviewing all the information, the Pardon Attorney agrees to advance the person’s petition, the Pardon Attorney will submit the person’s petition to the Deputy Attorney General.

The Deputy Attorney General will make a decision of whether to advance the petition to the desk of the President, and may work with the President’s general counsel. All people who aspire to an act of Executive Clemency should take the matter extremely seriously. Build a compelling case, even with the new initiative that the Department of Justice has announced. As stated above, many people will have a role in determining whether an act of clemency is warranted. Although none of those people have the power to say yes, they all have the power to say no. And if they say no, the petition will die before the President ever learns of the person’s petition.

People who choose to apply should consider the following suggestions:

Build a compelling and distinguished record that would show a commitment to live as a law-abiding, contributing citizen.

Build a record that would show remorse and a commitment to redemption.

Build a record that would persuade all readers that continued incarceration is not warranted. • Persuade the prosecutor to support the petition, or at least not oppose the petition.

Persuade the sentencing judge to support the petition, or at least not oppose the petition.

Persuade leading community citizens to write letters that endorse the petition.

Questions:

  1. In what ways will your understanding early-release mechanisms available through the executive branch of government influence your adjustment in prison?
  2. What type of adjustment in prison would persuade your prosecutor and judge to consider you from a different perspective than they did at sentencing?
  3. If you were to design, or engineer, a prison adjustment with a goal of pursuing clemency, but the President did not commute your sentence, what would that decision do to your spirits?
  4. From your perspective, what are the characteristics of a person who would receive favorable consideration on a clemency petition?
  5. How would your adjustment compare or contrast with your answer to the previous question?

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