AMERICA'S EXTRAORDINARY AND COMPELLING PROBLEM: AN ASSESSMENT OF THE SENTENCE MODIFICATION PROCESS IN THE FEDERAL DISTRICT COURTS AND THE NEED TO REMOVE THE BUREAU OF PRISON'S GATEKEEPER ROLE.

• Author: Chenail, Katherine

1. INTRODUCTION

   The Eighth Amendment provides, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (1) The brevity of the Eighth Amendment leaves unanswered many questions regarding federal sentencing and has required Congress to create guidelines structuring the sentencing process in an attempt to reduce sentencing disparities. (2) After the sentencing process, however, federal courts relinquish their power to modify or reduce a sentence barring narrow exceptions. (3) Instead, the Bureau of Prisons ("BOP") assumes the position of judge and determines when an inmate qualifies for a sentence modification or a statutory sentence reduction. (4)

   The ability to release inmates from prison or move inmates to home confinement became a focal issue during the coronavirus ("COVID-19") pandemic ("pandemic"), as federal prisons experienced COVID-19 outbreaks on a massive scale. (5) In the early months of the pandemic, the BOP sought to move individuals to home confinement in an effort to slow the spread of the virus and protect vulnerable inmates. (6) Despite the BOP's attempts to move vulnerable inmates to home confinement, many inmates looked to the courts for relief in the form of compassionate release after the BOP either denied their release or failed to respond to their requests. (7)

   The pandemic did not cause the failures in the BOP's system for prisoner release, but it brought those failures to light in a devastating way. (8) This note addresses those shortcomings, focusing on the widespread disparity among compassionate release decisions, and argues that these failures will continue unless Congress establishes clarifications and amendments to the current statutory framework. (9) To achieve parity for sentence modification, (1) the home confinement and compassionate release statutes should be amended to include stricter regulations for BOP conduct; (10) (2) Congress must explicitly make the compassionate release statute's exhaustion requirement waivable, thereby removing the BOP's "gatekeeper" role over sentence modification; (11) and (3) Congress must explicitly state that extraordinary and compelling circumstances must be assessed on the facts of each compassionate release motion. (12)

2. HISTORY

   In the second half of the twentieth century, reformers focused on revising federal sentencing policies that gave wide discretion to sentencing judges. (13) In an attempt to ensure uniformity in criminal sentences across the federal court system, Congress passed the Sentencing Reform Act in 1984, which granted the U.S. Sentencing Commission the power to create sentencing policies for the federal courts. (14) Congress instructed the Sentencing Commission to fashion its policies in a way that met the objectives of federal statutes governing punishment. (15) Judges in the federal district courts follow statutory guidelines as well as the Sentencing Commission's guidelines to meet the policy and statutory objectives in the sentencing process. (16)

   Once a court sentences a defendant, it maintains limited options for changing the sentence. (17) Generally, the power to change an inmate's sentence rests with the BOP, which has two options for sentence modification. (18) First, the BOP may move an inmate to home confinement after determining that the inmate has demonstrated a reduced recidivism risk and has served the requisite percentage of his sentence. (19) Second, the BOP may motion the court to grant compassionate release if it finds "extraordinary and compelling reasons" justify release. (20) Before a sentencing court may grant the BOP's motion for compassionate release, the judge must find that extraordinary and compelling reasons warrant a reduction in sentence and that reducing an inmate's sentence would still accomplish the goals of the Federal Sentencing Guidelines ("FSG"). (21) Congress attempted to define the terms "extraordinary and compelling" by outlining specific factors for courts to consider when judging a compassionate release motion, including medical condition, age, and family circumstances. (22) Before a court can consider a prisoner's motion for compassionate release, however, the BOP must either (1) file a motion with the court or (2) deny the prisoner's request through all stages of the administrative process. (23) While the system itself is inefficient, the BOP's poor handling of the compassionate release program has compounded those inefficiencies. (24)

   The most recent change to the federal sentencing system occurred in 2018 when Congress passed the FIRST STEP Act ("FSA"), which modified sentencing guidelines as well as methods of release available to both the BOP and the courts. (25) Many of the changes enacted by the FSA aimed to actively lower the federal prison population, demonstrating a concerted effort to reduce incarceration levels. (26) The FSA explicitly directed the BOP to move qualifying prisoners to home confinement for the maximum time period. (27) Despite the new congressional directive, the BOP did not move inmates en masse to home confinement, which may be a result of the FSA's new system for gauging recidivism. (28) The FSA also amended the statutory structure for bringing a compassionate release claim by allowing inmates to bring a motion to the court in the event that the BOP either refused their request or failed to respond to their request within thirty days. (29) This amendment indicates a congressional acknowledgement of the BOP's failures in effectuating aspects of its gatekeeper role. (30)

   At the state level, forty-nine states have some form of early release statutes, which allow prisoners to request early release in situations of imminent death or significant illness. (31) The Massachusetts legislature, for instance, recently enacted a medical parole statute, which allows prisoners to request medical parole in cases of illness or permanent incapacitation. (32) Notably, the Massachusetts statute imposes requirements on the superintendent of the prison, including a timeframe for responding to requests as well as what the response must entail. (33) In this way, the Massachusetts statute differs from the federal statute, which imposes no affirmative duty on the BOP to respond to requests for home confinement or compassionate release. (34)

3. FACTS

   In early 2020, the novel coronavirus began spreading through the country, rapidly evolving into a pandemic. (35) During the first few months of the pandemic, the virus reached the federal prison system and quickly spread through facilities across the country. (36) As the federal government worked to ameliorate the pandemic's damaging effects on the economy and public health, Congress passed the CARES Act, which in part addressed COVID-19 outbreaks among the federal prison population and specifically instructed the BOP to increase home confinement for qualified inmates. (37)

   After Congress issued this directive, Attorney General William Barr distributed a memorandum to the BOP on March 26, 2020, directing staff to prioritize granting home confinement to inmates seeking transfer in connection with the pandemic, while also requiring a fourteen-day quarantine period for inmates pre-release. (38) Barr's first memorandum included a non-exhaustive list of factors for BOP staff to consider when reviewing requests for home confinement, including the inmate's vulnerability to COVID-19, the inmate's score under the PATTERN system for gauging recidivism, the inmate's re-entry plan, and the seriousness of the original offense. (39) Barr issued a subsequent memorandum on April 3, 2020, in which he instructed the BOP to immediately expand transfers of eligible inmates to home confinement from the three federal prisons with the worst outbreaks, while cautioning against releasing inmates who pose a danger to the public. (40)

   Despite Congressional directive through the CARES Act and Attorney General Barr's instructions, the BOP demonstrated difficulty controlling outbreaks and efficiently moving inmates to home confinement. (41) At Federal Correctional Institution ("FCI") Oakdale, one of the prisons Attorney General Barr specifically addressed as a hotspot, eleven prisoners died of COVID-19 between late March and April 25, 2020; the facility only released thirteen inmates total. (42) In a report that the Department of Justice ("DOJ") compiled regarding COVID-19 policies at FCI Lompoc in California, the DOJ specifically noted that the BOP's use of home confinement to stop the spread of COVID-19 was extremely limited, reporting that as of May 13, 2020, over 900 inmates at Lompoc had contracted COVID-19. (43) During that time period, the BOP had transferred only eight inmates to home confinement from that prison. (44)

   During the early stages of the pandemic, BOP confusion over its own home confinement policy compounded its mismanagement of the program. (45) The BOP frequently changed its policy regarding the requisite percentage of a sentence an inmate must serve before the BOP can consider home confinement. (46) This lack of clarity led BOP staff to inform prisoners, who were set to be released, that they no longer qualified. (47) The BOP also sowed confusion through changing policies surrounding pre-release quarantine for inmates eligible for home confinement. (48) In practice, it proved difficult for prison facilities to safely quarantine prisoners who were set for home confinement due to an inability to individually isolate inmates. (49) Facilities housed inmates set for home confinement with other similarlysituated inmates, leading to cycles of infection, which kept inmates who qualified for release in prison. (50)

   As the BOP struggled to move individuals to home confinement, more inmates took their requests to the courts, utilizing their newly granted right under the FSA to bring compassionate release motions without a motion from the BOP. (51) However, a federal circuit...